Jones v. Luebbers

• Citation: 359 F.3d 1005
• Decision Date: 03 March 2004
• Docket Number: No. 02-1132.,02-1132.
• Parties: Donald JONES, Petitioner-Appellant, v. Al LUEBBERS, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

359 F.3d 1005

Donald JONES, Petitioner-Appellant, v. Al LUEBBERS, Respondent-Appellee.

No. 02-1132.

United States Court of Appeals, Eighth Circuit.

Submitted: April 17, 2003.

Filed: March 3, 2004.

Order Denying Petition for Rehearing and for Rehearing En Banc May 11, 2004.

COPYRIGHT MATERIAL OMITTED

Michael A. Gross, argued, St. Louis, MO, for appellant.

Andrew W. Hassell, AAG, argued, Jefferson City, MO (Catherine Dolgin, AAG, Jefferson City, MO, on the brief), for appellee.

Before MORRIS SHEPPARD ARNOLD, BEAM, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Petitioner-Appellant Donald Jones, a state prisoner under a sentence of death, appeals the district court's¹ denial of habeas relief. On appeal, Jones argues that the state trial judge who presided over his capital murder trial was biased and that his public defenders were ineffective due to their failure to secure the trial judge's recusal. Because the courts of Missouri did not "make an unreasonable determination of the facts in light of the evidence presented in state court proceedings," 28 U.S.C. § 2254(d)(2), nor apply "clearly established Federal law, as determined by the Supreme Court of the United States" in an unreasonable manner, 28 U.S.C. § 2254(d)(1), we affirm.

I. Background

In 1994, a jury convicted Jones of first degree murder and armed criminal action for bludgeoning his grandmother with a knife block, stabbing her to death, stealing her money, and stealing her car and other personal property to buy crack cocaine. The jury recommended, and the trial judge imposed, a sentence of death for the murder and a sentence of life imprisonment for the armed criminal action. Because we granted a certificate of appealability only as to Jones's claims of trial court bias and ineffective representation, we address in detail only facts that are relevant to the issues of representation and bias. The Missouri Supreme Court set forth facts relevant to the underlying crime in State v. Jones, 979 S.W.2d 171, 176 (Mo.1998) (en banc), cert. denied, 525 U.S. 1112, 119 S.Ct. 886, 142 L.Ed.2d 785 (1999).

Jones's case was assigned to Missouri trial judge Charles D. Kitchin on November 19, 1993. Karen E. Kraft, a managing attorney in the public defender's capital case office, represented Jones. On January 1, 1994, Ms. Kraft assigned assistant public defender Ellen A. Blau to assist in Jones's defense. On April 21, 1994, Ms. Kraft and Ms. Blau, on behalf of Jones, moved for Judge Kitchin's disqualification. They alleged that Judge Kitchin was biased against Ms. Blau and requested that a separate judge rule on the disqualification motion.

The allegations of bias stemmed from an unrelated, 1992 case before Judge Kitchin. In that case, Ms. Blau arranged for a public defender to represent a state's witness against her client after the state's witness had already pled guilty and agreed to testify against her client. After receiving representation, the state's witness withdrew his plea and invoked his Fifth Amendment rights. Facing the loss of the witness, the state dropped the charges against Ms. Blau's client. Judge Kitchin believed that Ms. Blau's interference with the state's witness was unethical and potentially criminal. Judge Kitchin recommended that the prosecutor charge Ms. Blau with a crime and refer the matter to Missouri's attorney discipline body to investigate and sanction Ms. Blau for her role in the state's loss of its witness.

In a different 1992 case, Judge Kitchin criticized Ms. Blau's representation of a client and warned Ms. Blau that her behavior came close to suborning perjury. Finally, Ms. Kraft and Ms. Blau alleged that Judge Kitchin expressed bias against an expert witness they proposed for use in Jones's defense, psychiatrist Sadashiv Parwatikar, M.D.

Ms. Kraft and Ms. Blau did not move for disqualification until approximately five months after the initial assignment of the case to Judge Kitchin. Accordingly, Jones was not entitled to an automatic transfer to a different judge. See Mo. R.Crim. P. 32.07 (providing for an automatic change of judge upon timely application). Instead, Judge Kitchin granted a hearing on the issue of disqualification for cause and denied the request to assign another judge to preside over the disqualification hearing. At the hearing, another assistant public defender, Richard Scholz, appeared on behalf of Jones. Mr. Scholz renewed the earlier request to have a different judge preside over the disqualification hearing, but Judge Kitchin again denied the request.

During the disqualification hearing, Judge Kitchin questioned witnesses and served as a witness. Mr. Scholz's behavior at the hearing clearly angered Judge Kitchin. Judge Kitchin summarily overruled a number of Mr. Scholz's objections, ordered Mr. Scholz to remain silent, threatened to hold Mr. Scholz in contempt, and threatened to imprison Mr. Scholz for contempt. After repeatedly asking the court reporter to note Judge Kitchin's angry demeanor and hostile tone, Mr. Scholz requested and received leave to withdraw from the case. After Mr. Scholz withdrew, Ms. Kraft assumed the role as primary counsel. When Ms. Kraft attempted to ask a particular witness whether or not he had "observed a bias on the part of Judge Kitchin" towards Ms. Blau, Judge Kitchin sustained the prosecutor's objection, repeatedly stated that he disapproved of Ms. Blau's earlier behavior, and stated emphatically that he would note the fact of his disapproval in his written order. Later, when questioned by Ms. Kraft about Ms. Blau, Judge Kitchin responded:

There's no question I think it was a gross violation of the canons of ethics and totally improper and a total outrage that such a thing was done. I['ve] been in this business thirty years. I know of no other case where any attorney went to a state's witness [and] got the state's witness a lawyer who later told him to take the Fifth.

Judge Kitchin admitted that he discussed Ms. Blau's conduct in the earlier cases with several other judges. In his written order to deny the motion for disqualification, Judge Kitchin wrote, "The Court ... believed then and believes now that Ellen Blau's actions in that matter were both improper and unethical."

Jones points to additional instances following the disqualification hearing that demonstrate Judge Kitchin's anger with Ms. Blau. During voir dire at Jones's trial, Ms. Blau objected to a question by the prosecutor. Judge Kitchin cut off Ms. Blau before she could finish her objection and called counsel to the bench. At this bench conference, Judge Kitchin scolded Ms. Blau for making a speech in front of the prospective jurors. Ms. Blau attempted to make a record regarding Judge Kitchin's angry demeanor. After Ms. Blau suggested that Judge Kitchin was angry, Judge Kitchin stated, "I certainly am, because you have no business making a long, rambling speech and statement that was not in fact a legal objection in the presence of the jury. That kind of thing should be done at the bench." It is not clear from the record whether the prospective jurors were able to hear or observe this conference at the bench.

Finally, additional instances of hostility from Judge Kitchin towards Ms. Blau occurred outside the presence of the jury during an instruction conference, during a telephone conference to schedule Jones's sentencing hearing, and during the sentencing hearing. At the instruction conference, Judge Kitchin refused Ms. Blau's request to place a proposed instruction in the record and referred to her request as "ridiculous." Ms. Blau stated via affidavit that, during a telephone conference to schedule sentencing, Judge Kitchin became angry, abusive, and threatening when she told him that neither defense counsel would be available for a proposed sentencing date. According to Ms. Blau, Judge Kitchin said that if Ms. Kraft or Ms. Blau did not appear for a later date, they would be held in contempt. Finally, at sentencing, Ms. Blau attempted to make a record of the fact that Judge Kitchin had threatened to hold her in contempt during the telephone conference. Judge Kitchen said that her claim was "false and a direct lie" and that what he had said was that "there would be sanctions imposed if you didn't show up today." Ms. Blau claimed her statements were not lies, and Judge Kitchin replied, "Oh, yes they are, young lady, and you know it."

Jones raised the issues of trial court bias and ineffective representation (for counsel's failure to secure Judge Kitchin's recusal or, in the alternative, for Ms. Blau's failure to withdraw as counsel) in a post-trial motion to the state trial court under Missouri Rule of Criminal Procedure 29.15. Jones requested an evidentiary hearing on all of the issues in his Rule 29.15 motion. The trial court granted an evidentiary hearing only as to certain issues not presently before our panel and did not grant an evidentiary hearing as to the issues of judicial bias or the related issue of ineffective assistance. At the Rule 29.15 hearing, counsel advised the court that an evidentiary hearing was not necessary as to many of the claims, including the claims of bias and the related claims of ineffective assistance.

Ultimately, a Missouri trial court judge other than Judge Kitchin denied Jones's Rule 29.15 motion. This judge found that the allegations of judicial bias were grounds for direct appeal but not grounds for relief in a post-conviction proceeding. The Missouri Supreme Court then heard Jones's appeal from the denial of his Rule 29.15 motion in consolidation with his direct appeal. Regarding the allegations of bias, the Missouri Supreme Court determined that the issue of bias was an issue of state law rather than an issue of federal constitutional rights. Relying on Missouri authority, the Missouri Supreme Court rejected Jones's claims of bias and wrote:

Jones does not allege facts to show that the judge was biased against him personally or against the...