Kinder v. Bowersox

• Decision Date: 14 May 2001
• Docket Number: No. 00-2807,00-2807
• Citation: 272 F.3d 532
• Parties: (8th Cir. 2001) Brian Joseph Kinder, Appellant, v. Michael Bowersox, Appellee. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 532

272 F.3d 532 (8th Cir. 2001)

Brian Joseph Kinder, Appellant, v. Michael Bowersox, Appellee.

No. 00-2807

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: May 14, 2001

Filed: November 16, 2001

Appeal from the United States District Court for the Eastern District of Missouri. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before McMILLIAN and BOWMAN, Circuit Judges, and BOGUE,¹ District Judge.

BOWMAN, Circuit Judge.

Brian Kinder filed a habeas petition in the District Court² alleging nearly forty grounds for relief. The court denied the petition and granted a certificate of appealability (COA) on twenty-one of those issues. Kinder appeals and we affirm.

A jury convicted Kinder of the December 22, 1990, rape and first-degree murder of Cynthia Williams in Jefferson County, Missouri, and he was sentenced to death. He appealed. His Missouri Supreme Court Rule 29.15 post-conviction motion was denied after an evidentiary hearing. His appeal from that denial was consolidated with his direct appeal in the Missouri Supreme Court. That court rejected Kinder's arguments and affirmed the conviction, the sentence, and the denial of post-conviction relief. State v. Kinder, 942 S.W.2d 313 (Mo. 1996) (en banc), cert. denied, 522 U.S. 854 (1997).

Kinder then sought relief in the District Court under 28 U.S.C. § 2254 (1994 & Supp. IV 1998), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. The court considered Kinder's arguments and addressed each one thoroughly and at length, ultimately denying § 2254 relief. Before us now are the twenty-one issues on which the District Court granted a COA. To bring some order to our opinion, we discuss the claims by categories we have chosen. But initially we will restate briefly the scope of our review since AEDPA.

I. Standard of Review

The relief Kinder seeks will not be granted on any claim "adjudicated on the merits in State court proceedings unless the adjudication of the claim . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."³ 28 U.S.C. § 2254(d)(1). Our first step, then, in evaluating a challenge to the state court's application of the law is to determine what, if anything, the Supreme Court has said on the subject.⁴ From there, we proceed to take a careful look at the decision of the state court. That decision will be viewed under AEDPA as "contrary to" clearly established federal law if the state court has applied a rule that directly contradicts Supreme Court precedent or has reached a result opposite to a result reached by the Supreme Court on "materially indistinguishable" facts. Williams v. Taylor, 529 U.S. 362, 405 (2000) (concurring opinion of O'Connor, J., for the Court). As for an "unreasonable application" of the law, we must remember that unreasonable is not the same as incorrect. Penry v. Johnson, 121 S. Ct. 1910, 1918 (2001). The state court's application might be erroneous, in our "independent judgment," yet not "unreasonable." Williams, 529 U.S. at 411.

The factual findings of the state court also may be challenged in a § 2254 petition, but they are subject to an even more deferential review. Relief may be granted if the state court adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). Factual findings by the state court "shall be presumed to be correct," a presumption that will be rebutted only "by clear and convincing evidence." Id. § 2254(e)(1).

Mindful of these standards, we consider Kinder's arguments on appeal.⁵ As ever, we review any factual findings of the District Court for clear error and consider legal issues or mixed questions of law and fact de novo. See Dye v. Stender, 208 F.3d 662, 665 (8th Cir. 2000).

II. Pretrial and Jury Selection Issues

A. Trial Judge's Failure to Recuse

For his first issue, Kinder asserts that Judge Earl Blackwell of the state trial court should have disqualified himself as trial judge, as Kinder requested before the trial began. The judge was running for reelection around the time of the trial. On March 31, 1992, six days before Kinder's trial was to begin, the judge announced that he was switching political parties and issued this press release, dated "FOR RELEASE 5:00 P.M. MARCH 31st." and signed by the judge, which we quote in its entirety:

When asked why he had filed on the Republican ticket Blackwell, who served 16 years (1958-1974) in the Missouri Senate as a Democrat, said, "Republican? Democrat? Who gives a damn? I once heard a man say 'Only politicians profit from politics; the people gain nothing'. That man was Earl Blackwell, and I believe he was right. Anyway, good judges cannot be politicians".

"Why did I file as a Republican? Especially in a Democrat stronghold such as Jefferson County? Some may say it's because I like to live dangerously. But that's not the case," Blackwell said.

"The truth is that I have noticed in recent years that the Democrat party places far too much emphasis on representing minorities such as homosexuals, people who dont' [sic] want to work, and people with a skin that's any color but white. Their reverse-discriminatory quotas and affirmative action, in the work place as well as in schools and colleges, are repugnant to me," Blackwell said. "I believe that a person should be advanced and promoted, in this life, on the basis of initiative, qualifications, and willingness to work, not simply on the color of his or her skin, or sexual preference."

"While minorities need to be represented, or [sic] course, I believe the time has come for us to place much more emphasis and concern on the hard-working taxpayers in this country", Blackwell said. "That majority group of our citizens seems to have been virtually forgotten by the Democrat party."

Blackwell concluded, "In feeling as I do, I am certainly not alone in Jefferson County. Many many people, formerly Democrats, have told me that they will no longer vote as Democrats. They say they have had enough. And I have, too."

Kinder filed a motion for recusal with the court, noting that he, Kinder, was a minority who was unemployed at the time of the crimes for which he was about to stand trial. He argued that the judge's comments reflected a negative attitude toward minorities and people who are not "hard-working taxpayers." The judge held a hearing on April 2, 1992, and overruled the motion, stating:

The Court is not prejudiced against this defendant or any black person in any degree. The Court, as a matter of fact and the Court's record will show having served in the Missouri legislature for sixteen years, that there is no stronger believer in Constitutional rights than this Court.

People get confused sometimes when you talk about group rights, civil rights, or white rights or black rights or yellow rights, when they start talking that way they lost me.

As far as this Court is concerned every individual and every citizen of this country is absolutely entitled to their individual Constitutional rights whether they be yellow, red, white, black or polka-dot. It doesn't make any difference to this Court. A person is a person and an individual is an individual. I think people get off the track when they start talking about color. But in so far as this Court is concerned there is no stronger defender of individual Constitutional rights than this Court and this defendant can rest assured and if he doesn't know it now he will know it after the trial, I am sure. This defendant can rest assured there is no prejudice on the part of this Court. If there is prejudice in any direction it is prejudice towards upholding each individual's Constitutional rights, as I said whether the individual be white, black, red, yellow or whatever, it doesn't make any difference to this Court. Therefore the motion for recusal is overruled.

Partial Transcript of Proceedings at 3-4 (Apr. 2, 1992).

Kinder maintains that the District Court "deferred completely to the state court adjudication of Kinder's claims" and "offers no explanation why it is not an unreasonable application of federal law by the Missouri Supreme Court to hold that a judge who claims minorities are not hardworking is not actual biase [sic], or has the appearance of bias." Br. of Appellant at 5, 6. According to Kinder, because Judge Blackwell was apparently or actually biased, clearly established law required him "to recuse himself after issuing his press release" because "[a] criminal defendant has an undisputed constitutional [due process] right to be tried before an impartial judge." Id. at 9.

There is no question that the law on judicial bias is clearly established: a criminal defendant is constitutionally required to be tried before an impartial judge, and the likelihood or appearance of bias, even in the absence of actual bias, may prevent a defendant from receiving a fair trial. See Taylor v. Hayes, 418 U.S. 488, 501 (1974); In re Murchison, 349 U.S. 133, 136 (1955). But the District Court said that Kinder did not "appear[] to assert that the Missouri courts' decisions were 'contrary to' or an 'unreasonable application' of clearly established Supreme Court precedent." Memorandum and Order at 16. The court noted that in response to the State's argument that no Supreme Court precedent supports Kinder's position, Kinder countered that the question then became one to be contemplated under § 2254(d)(2): Was there an unreasonable determination of the facts? Although Kinder invokes the "contrary to" and the "unreasonable application of" law standards in his brief in this Court, Br. of Appellant at 9, he does not identify any authority to support the...