Kenley v. Armontrout

• Decision Date: 17 May 1991
• Docket Number: Nos. 89-2915,90-1015,s. 89-2915
• Parties: Kenneth L. KENLEY, Appellant, v. Bill ARMONTROUT, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1298

937 F.2d 1298

Kenneth L. KENLEY, Appellant, v. Bill ARMONTROUT, Appellee.

Nos. 89-2915, 90-1015.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 8, 1990.

Decided May 17, 1991.

Mary C. Kickham, Thomas Cotter, St. Louis, Mo., for appellant.

Stephen Hawke, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and STUART, ^* Senior District Judge.

HENLEY, Senior Circuit Judge.

Appellant, Kenneth L. Kenley (hereinafter "Kenley"), was convicted in separate trials of capital murder and related noncapital offenses based on a spree of robberies that occurred on January 3 and 4, 1984. A summary of the crime facts appears in the opinion of the Missouri Supreme Court. State v. Kenley, 693 S.W.2d 79, 80-81 (Mo.1985) (en banc). In sum, Kenley committed one murder, shot two bystanders, abducted two bystanders, stole two cars, committed several assaults, and robbed four businesses in just a few hours. Kenley was represented by appointed counsel. The two separate cases were based on essentially the same evidence, which included seven eyewitnesses to the murder and twenty-six total witnesses corroborating various aspects of Kenley's identity, his vehicles and his weapon. At the capital trial the jury found two aggravating circumstances, murder for value and the knowing creation of risk of death in a public place, and imposed the death sentence.

The capital appeal unsuccessfully alleged errors related to evidentiary issues, jury procedures and violation of the eighth amendment. Kenley, 693 S.W.2d at 81-83. The noncapital appeal unsuccessfully alleged errors related to evidentiary issues and ineffective assistance of counsel. State v. Kenley, 701 S.W.2d 185 (Mo.App.1985). Kenley then sought post-conviction relief from both the capital and noncapital sentences, received a hearing, but was denied relief by the Missouri Circuit Court (hereinafter "circuit court"). The claims were then reviewed by the Missouri Court of Appeals (hereinafter "appeals court") which affirmed the judgment of the circuit court. Kenley v. State, 759 S.W.2d 340 (Mo.App.1988).

This appeal arises from the federal district court's (hereinafter "district court") denial of Kenley's petition for writ of habeas corpus. 28 U.S.C. Sec. 2254 (1990). The petition raises thirty-five grounds for relief as to the capital conviction and a dozen grounds for relief as to the noncapital convictions (primarily claims of ineffective assistance of counsel).

Kenley argues, with respect to both the capital and noncapital claims, that the district court erred by: (1) finding no ineffective assistance of counsel during the guilt or sentencing phase of either trial, (2) finding many of Kenley's claims for relief procedurally barred, and (3) applying the presumption of correctness to state court findings too broadly. Because we believe Kenley received ineffective assistance of counsel during the sentencing phase of his capital trial, we reverse the judgment of the district court and remand this case to the district court with instructions that the State of Missouri resentence Kenley.

FACTS

The facts that follow represent a composite of the consistent findings made by the Missouri courts and the district court, unless otherwise stated. Appointed counsel was a new county public defender just three months out of law school with no trial experience. The trial occurred six Counsel sought and received little outside assistance in preparing his case. Kenley's former social worker, Mrs. Crownover, initiated contact with counsel offering assistance, and counsel responded with a request for her records. The parties had no further contact. A letter from the Office of State Public Defender was also sent to counsel suggesting he associate with co-counsel, and offering case assistance in rural counties (such as Butler County) from more experienced public defenders elsewhere. Counsel did not respond to this letter but did testify in the state post-conviction proceeding that he spoke with a former classmate and another attorney working as public defenders in St. Louis about the case. His former classmate had only misdemeanor experience.

months after appointment when counsel had one misdemeanor robbery trial under his belt. Counsel's time card from Butler County, Missouri indicates he spent roughly fifty hours in pre-trial preparation for Kenley's capital trial.

Crownover's letter referred counsel to a Dr. Manion who had previously examined and treated Kenley in 1975. Counsel never contacted Manion. After receiving Crownover's records, counsel requested a psychiatric examination which was performed by Dr. Parwatikar in 1984 at Fulton State Hospital. Counsel testified that he discussed the Parwatikar report with a non-examining physician, Dr. Wiscowski, for six hours. This is not corroborated by his time card. Counsel testified he then decided not to introduce Kenley's background as mitigating evidence because the information was too old and insubstantial, Parwatikar's report was conclusively non-mitigating, and it was possible additional aggravating information would also be introduced. Kenley, 759 S.W.2d at 345. Counsel apparently did not seek or review any other records of Kenley's background.

Each court before us reviewed the Crownover, Manion and Parwatikar information reviewed by counsel. Representative of their findings is this summary by the appeals court:

... Kenley had been aggressive, hostile and went into uncontrollable rages and had shown improvement only while on medication in an institution; that Kenley grew up in a non-nurturing environment and had a violent and angry relationship with his father; that all attempts at control, help and treatment of him had proven futile; that Dr. Manion expressed the opinion that "treatment will facilitate adjustment, further adjustment"; and that the latest documentation by either witness was at least 6 years old.

Kenley, 759 S.W.2d at 347.

Prior to the capital trial, counsel waived an automatic change of venue despite the wide publicity Kenley's crimes had received. During voir dire, counsel performed little inquiry into the attitudes of the jurors toward capital punishment and into jurors' ability to consider a range of possible punishments. Counsel waived opening statement and only asked thirty-six cross-examination questions of eight out of twenty-six witnesses. Counsel did not challenge somewhat inaccurate descriptions of Kenley and his vehicle, did not challenge ambiguities and inconsistencies in witness statements, and did not object to a surprise pathologist's report. Counsel also did not object to the admission of cumulative and potentially prejudicial testimonial evidence regarding Kenley's identity, the victim's family, and other weapons unrelated to the crime. Counsel made a short, unremarkable closing argument and submitted no jury instructions. Capital murder, second degree murder and manslaughter instructions were given by the court.

At the capital sentencing, counsel submitted no mitigating evidence although Kenley's age was stipulated and the prosecution introduced Kenley's single prior conviction. Counsel unwittingly made reference to Kenley's failure to testify and did not object to evidence regarding the deterrent effect of the death penalty introduced by the prosecution. Many similar events occurred (or failed to occur) at Kenley's noncapital trial. In addition, counsel made no closing argument and did not move for severance of charges (robbery, kidnapping The district court, applying the presumption of correctness, adopted the state court findings regarding the Crownover, Manion and Parwatikar evidence. It characterized the evidence as "scant" mitigating evidence. Mem.Op. at 40. The district court ruled that Kenley had procedurally defaulted on at least some part of twenty-five of his thirty-five claims for relief from the capital conviction and on two of his twelve claims for relief from the noncapital convictions. The court concluded cause and prejudice had not been demonstrated on any barred claims. Id. at 4. The district court determined the remaining claims were without merit after deferentially reviewing the state court fact findings and legal conclusions.

assault and theft). By the close of the noncapital trial, counsel had accepted a job with the prosecuting attorney's office.

STANDARD OF REVIEW

Likewise, this court undertakes a deferential review when considering the factual findings of the state and district courts. As we have consistently said in recent decisions, we apply a presumption of correctness to state court findings of fact, we review claims of ineffective assistance of counsel de novo as a mixed question of fact and law, and we only review those claims which were fairly presented first to the state courts and the federal district court, unless cause and prejudice or miscarriage of justice are shown sufficient to excuse default. See, e.g., Bolder v. Armontrout, 921 F.2d 1359, 1361 (8th Cir.1990), reh'g denied, 928 F.2d 806 (8th Cir.1991); Laws v. Armontrout, 863 F.2d 1377, 1381-82 (8th Cir.1988) (en banc), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989).

PRELIMINARY ISSUES

The petition for habeas relief contained several different claims of ineffective assistance of counsel and other claims based on allegedly inadmissible evidence, incorrect jury procedures and instructions, and violation of the eighth amendment. Having reviewed the relevant opinions of the respective courts and the excerpts from state court filings contained in the record, we affirm the district court's determination of procedural bar with regard to twelve of Kenley's claims. ¹ These claims were not adequately presented to the state courts, and Kenley did not meet his burden of showing cause and prejudice or miscarriage of justice. See Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); ...