Hunter v. Bowersox

• Decision Date: 22 March 1999
• Docket Number: No. 97-2084,97-3325,97-2084
• Citation: 172 F.3d 1016
• Parties: Bert L. HUNTER, Petitioner--Appellant, v. Michael BOWERSOX, Respondent--Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1016

172 F.3d 1016

Bert L. HUNTER, Petitioner--Appellant, v. Michael BOWERSOX, Respondent--Appellee.

No. 97-2084, 97-3325.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 21, 1998.

Decided March 22, 1999.

Cheryl A. Rafert, St. Louis, MO, argued (Leo N. Griffard, Jr., Boise, Idaho, on the brief), for Petitioner-Appellant.

Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, MO, argued, for Respondent-Appellee.

Before McMILLIAN, LOKEN, and HANSEN, Circuit Judges.

LOKEN, Circuit Judge.

Bert L. Hunter, a Missouri inmate under sentence of death, appeals the denial of his petition for a writ of habeas corpus. The district court ¹ granted a certificate of appealability on three issues: whether Hunter's guilty plea was valid; whether the trial court's sentencing process was constitutionally proper; and whether Hunter was denied effective assistance of counsel. We granted a certificate on a fourth issue, whether the district court should have held an evidentiary hearing, and now affirm.

I. Background

On December 15, 1988, Hunter and friend Tomas Ervin, armed and planning to rob Richard Hodges, forced their way into the Jefferson City home of Mildred Hodges and her son, Richard. After binding Mildred Hodges with duct tape, Hunter began searching the house for money and valuables. As Ervin tied up Richard Hodges, Mildred broke free and pulled the mask off Ervin's face, and Ervin called out Hunter's name. Fearful they could now be identified, Hunter and Ervin decided to kill their victims. They placed plastic bags over the heads of Mildred and Richard. Hunter held Richard's nose until he suffocated.

State Court Proceedings. In March 1989, the State of Missouri charged Hunter with two counts of first degree murder and one count of first degree robbery. Hunter advised appointed defense counsel that he wanted to plead guilty but remained silent at his arraignment. The court entered a plea of not guilty on all counts and ordered a psychiatric evaluation.

At a pretrial hearing in July 1989, Hunter told the court he wanted to plead guilty, despite the contrary advice of counsel. The court adjourned proceedings to give Hunter and his attorney time to reconcile their differences, and to give Hunter an opportunity to talk with family, friends, or clergy. Four days later, Hunter again appeared, confirmed a continuing difference of opinion with counsel, and asked the court to allow him to proceed pro se and plead guilty. After questioning Hunter, the court allowed him to proceed pro se but asked appointed counsel to remain during the hearing to answer any questions Hunter might have. The court and standby counsel then questioned Hunter at length on his decision to plead guilty and forgo his right to trial by jury. The court then accepted Hunter's guilty plea, finding it was entered knowingly, intelligently, and voluntarily, and ordered a second mental health evaluation and a presentence investigation report ("PSR").

In October 1989, Hunter moved to withdraw his guilty plea, arguing the plea was coerced by depression caused by cocaine withdrawal and the coercive conditions of his confinement, and that there was no factual basis for the plea. The motion was denied after a hearing. On February 15, 1990, the court held a lengthy sentencing hearing at which Hunter presented evidence of mitigating circumstances through several witnesses. The court nonetheless found specific aggravating circumstances and sentenced Hunter to death on the two murder convictions and to life in prison on the robbery conviction. Hunter appealed, and the appeal was stayed pending state postconviction proceedings under Missouri Rule of Criminal Procedure 24.035. The postconviction court denied Hunter relief after an evidentiary hearing, and Hunter again appealed. After consolidating the two appeals, the Missouri Supreme Court affirmed the convictions, the sentences, and the denial of Rule 24.035 relief. See State v. Hunter, 840 S.W.2d 850 (Mo. banc 1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 732 (1993). Following the denial of Hunter's petition for a writ of certiorari, a pro se petition for a writ of habeas corpus was filed in his name in the Western District of Missouri.

District Court Proceedings. In May 1994, over the objections of court appointed counsel, Mary-Louise Moran, Hunter moved to dismiss the habeas petition, arguing it was filed without his knowledge or consent. The district court denied the motion, Hunter appealed, and we granted a writ of prohibition. In re Hunter, No. 94-8080 (8th Cir. Aug 2, 1994). The district court then dismissed the petition without prejudice.

In August 1994, Hunter filed a second pro se habeas petition in the Eastern District of Missouri. When the case was transferred to the Western District, Hunter refused to acknowledge he had authorized it. The district court concluded no authorized petition had been filed and denied a stay of execution. Hunter appealed. We granted a limited stay of execution and remanded. The district court then extended the stay of execution and appointed Ms. Moran as counsel. Hunter asked the court to appoint new counsel but refused to explain why he was dissatisfied with Ms. Moran. The court denied the motion but appointed co-counsel, Cheryl Rafert, who is Hunter's counsel on this appeal. In the following months, Hunter persistently refused to cooperate with Ms. Moran or to communicate with the court. After ordering Hunter to show cause why this conduct did not warrant dismissal, the district court dismissed the petition with prejudice, and Hunter again appealed. Concluding his conduct was improper but he should have one more chance to proceed on the merits, we reversed the dismissal and remanded. See Hunter v. Delo, 62 F.3d 271, 275-76 (8th Cir.1995).

In February 1996, Hunter filed an amended habeas petition alleging his conviction and sentence violated his constitutional rights because:

-- his guilty plea was invalid;

-- he unknowingly waived the right to sentencing by a jury;

-- his waivers of counsel and the privilege against self-incrimination were invalid;

-- there was no factual basis for the guilty plea;

-- the trial court judge was biased;

-- the trial court's sentencing was arbitrary and improper;

-- he was denied effective assistance of counsel;

-- his sentence was disproportionate; and

-- he was abandoned by his state postconviction counsel.

The district court denied the petition without an evidentiary hearing in November 1996 and later summarily denied Hunter's Rule 59(e) motion to amend the judgment. Hunter appealed and applied to the district court for a certificate of probable cause or a certificate of appealability. The court issued a certificate of appealability limited to three issues. Hunter then applied to this court for an expanded certificate of appealability and also separately appealed the district court's partial denial. We consolidated the two appeals, expanded the certificate to include a fourth issue, and otherwise denied Hunter's application. We will first address Hunter's contention that the district court and this court erred in not granting him an unlimited certificate of probable cause or certificate of appealability. We will then turn to the merits of the four issues on which the certificate was granted.

II. Certificate of Appealability Issues

Chapter 153 of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") amended 28 U.S.C. § 2253 to require state habeas petitioners to seek a certificate of appealability ("COA"), rather than the certificate of probable cause required under prior law. See 28 U.S.C. § 2253(c)(1). The substantive standards for granting the two certificates are identical--a substantial showing of the denial of a federal constitutional right. See Ramsey v. Bowersox, 149 F.3d 749, 759 (8th Cir.1998). But AEDPA changed the scope of a certificate. "[A] certificate of probable cause place[d] the case before the court of appeals, but a certificate of appealability must identify each issue meeting the 'substantial showing' standard." Herrera v. United States, 96 F.3d 1010, 1012 (7th Cir.1996). Hunter argues we erred in limiting the issues he may brief and argue on appeal because (1) the COA provisions of AEDPA do not apply to habeas petitions filed prior to AEDPA's effective date, April 24, 1996; and (2) AEDPA's COA provisions do not in any event limit the issues reviewable on appeal. ²

(1) In Tiedeman v. Benson, 122 F.3d 518, 520-21 (8th Cir.1997), we applied AEDPA's new appellate procedures to an appeal filed after the statute's effective date, even though the habeas petition was initially filed prior to that date. Hunter's amended habeas petition was filed on February 26, 1996. His notice of appeal from the denial of that petition was filed in April 1997, long after AEDPA went into effect. Hunter argues Tiedeman is contrary to the Supreme Court's decision in Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). That issue was expressly considered in Tiedeman, and we have since declined numerous requests to reconsider Tiedeman en banc. This panel is bound to follow Tiedeman. Thus, Hunter's appeal is subject to AEDPA's COA requirement.

(2) Hunter next argues that AEDPA does not require him to obtain a COA for each issue he wishes to present for appellate review. This contention is foreclosed by our decision in Ramsey, 149 F.3d at 759, where we held that the plain language of § 2253(c)(3) limits appellate review to the issues specified in the COA. Accord Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir.1998); Roberts v. Bowersox, 137 F.3d 1062, 1068 (8th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 808, 142 L.Ed.2d 668, 1999 WL 8123 (1999); Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir.1997). Hunter suggests it is unfair to impose this "radical change" without an advance warning such as the adoption of a local rule. But under prior law we...