Lee v. Kemna

• Decision Date: 13 March 2000
• Docket Number: No. 99-2406,99-2406
• Citation: 213 F.3d 1037
• Parties: (8th Cir. 2000) REMON LEE, APPELLANT, v. MIKE KEMNA, SUPERINTENDENT; JEREMIAH (JAY) NIXON, ATTORNEY GENERAL, STATE OF MISSOURI, APPELLEES. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1037

213 F.3d 1037 (8th Cir. 2000)

REMON LEE, APPELLANT, v. MIKE KEMNA, SUPERINTENDENT; JEREMIAH (JAY) NIXON, ATTORNEY GENERAL, STATE OF MISSOURI, APPELLEES.

No. 99-2406

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: March 13, 2000

Filed: May 25, 2000

Appeal from the United States District Court for the Western District of Missouri.

Before Morris Sheppard Arnold and Fagg, Circuit Judges, and Bennett, ^* District Judge.

Per Curiam.

Remon Lee was tried in Missouri state court on charges of first degree murder and armed criminal action. During his trial, Lee's alibi witnesses failed to appear and Lee moved for a continuance until the witnesses could be brought to the courtroom. The continuance was denied and Lee was convicted and given a concurrent sentence of life without parole on the murder charge and ten years on the armed criminal action charge. The trial court denied Lee's motion for a new trial which alleged ineffective assistance of trial counsel and violation of his due process rights.

On direct appeal, Lee claimed his trial motion for a continuance and his post-conviction motion for a new trial were improperly denied. The Missouri Court of Appeals found the continuance motion was properly denied because it did not comply with Missouri Supreme Court Rule 24.09, which sets out the required form of the motion, and Rule 24.10, which lists the required elements of the motion. The court also found the new trial motion was properly denied because Lee failed to produce evidence showing counsel was ineffective. Lee then filed a 28 U.S.C. 2254 petition claiming the denial of his motion for a continuance violated due process. The district court denied Lee's habeas petition finding the claim procedurally defaulted. We granted a certificate of appealability on the question of whether denial of Lee's motion for a continuance was a due process violation.

Lee first argues he did not procedurally default his claim. We disagree. Federal habeas review is not available on Lee's due process claim if the Missouri Court of Appeals "rest[ed] [its decision] on a state law ground that is independent of the federal question and adequate to support the judgment," regardless of "whether the state law ground is substantive or procedural." Coleman v. Thompson, 501 U.S. 722, 729 (1991); accord Hall v. Delo, 41 F.3d 1248, 1249-50 (8th Cir. 1994). The Missouri Court of Appeals rejected Lee's claim because his motion for a continuance did not comply with Missouri Supreme Court Rules 24.09 and 24.10 and thus the claim was procedurally defaulted.

We reach the merits of Lee's procedurally defaulted claim only if he can show cause for his default and prejudice or actual innocence. See Wyldes v. Hundley, 69 F.3d 247, 253-54 (8th Cir. 1995). Lee claims his default should be excused because trial counsel's failure to follow Missouri's motion rules constituted ineffective assistance of counsel. We reject Lee's claim because ineffective assistance of counsel must be presented to the state court as an independent claim before it can be used to establish cause for a procedural default. See id. at 253. Although Lee raised a claim of ineffective assistance in his post-conviction motion for a new trial, he did not specifically allege failure of trial counsel to present properly the motion for a continuance. See id. (habeas petitioner must present to state court same specific claim of ineffective assistance made out in habeas petition). Thus, the Missouri courts had no opportunity to consider whether Lee's trial lawyer was ineffective for failing to present the motion properly and Lee cannot present that claim now. Because Lee has not shown cause for his default, we do not reach the issue of prejudice.

An actual innocence claim requires Lee to show "'new reliable evidence . . . not presented at trial'" establishing "'that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.'" Id. at 254 (citations omitted). Lee has failed to make the required showing because the factual basis for the affidavits he relies on as new evidence existed at the time of the trial and could have been presented earlier. See Meadows v. Delo, 99 F.3d 280, 282 (8th Cir. 1996). Even assuming the alibi testimony was new evidence, Lee did not show with the required likelihood that reasonable jurors would not have convicted based on the word of three family members when the testimony of four prosecution witnesses refuted the alibi.

We affirm the denial of Lee's habeas petition.

*. The Honorable Mark W. Bennett, Chief Judge, United States District Judge for the Northern District of Iowa, sitting by designation.

BENNETT, Chief District Judge, dissenting.

As Justice Fortas observed, "There is no higher duty of a court, under our constitutional system, than the careful processing and adjudication of petitions for writs of habeas corpus." Harris v. Nelson, 394 U.S. 286, 292 (1969). "Today, as in prior centuries, the writ is a bulwark against convictions that violate 'fundamental fairness.'" Engle v. Isaac, 456 U.S. 107, 126 (1982) (quoting Wainwright v. Sykes, 433 U.S. 72, 96-97 (1977) (Stevens, J., concurring)). With this view of the importance and purposes of a writ of habeas corpus, I am unwilling to condone what I believe was a conviction in Lee's case that violates "fundamental fairness." Furthermore, I do not believe that Lee's due process claim has been procedurally defaulted, as the majority concludes, even under the current status of federal habeas law, which, in my view, increasingly elevates tortuous and tangled procedural impediments over fundamental fairness. See Coleman v. Thompson, 501 U.S. 722, 759 (1991) (Blackmun, J., dissenting) ("I believe that the Court is creating a Byzantine morass of arbitrary, unnecessary, and unjustifiable impediments to the vindication of federal rights" in habeas corpus actions). For these reasons, I must respectfully dissent.

To explain why I believe that the decision below must be reversed, I find that a more detailed discussion of the circumstances of this case is required. Lee was tried in Missouri state court on charges of first-degree murder and armed criminal action. At the opening of his trial, Lee's defense counsel promised the jury an alibi defense, complete with three alibi witnesses, who would establish that Lee was not in Kansas City, the location of the murder, on the day of the murder, but was instead in California. Indeed, the promised alibi witnesses--Lee's mother, stepfather, and sister--had voluntarily traveled from California to Missouri to testify on Lee's behalf at his trial and were present at the courthouse as trial began. Moreover, these witnesses were under subpoena and had previously met with defense counsel.

In its case in chief, the government presented the testimony of two witnesses who identified Lee as the getaway driver and two other witnesses who placed Lee in Kansas City within the twenty-four hours preceding the murder. However, the government presented no physical evidence linking Lee to the murder. On the Thursday morning before the state rested its case, Lee's alibi witnesses were present at the courthouse. However, following a lunch recess, the three witnesses could not be located. Lee's alibi witnesses have since provided affidavits in which they aver that they left the courthouse only after being told by a court security officer that their testimony would not be needed until the following day, because the state's case would take up the remainder of the day. No judge of any stripe, state or federal, trial or appellate, has yet passed on the reason for the alibi witnesses' sudden disappearance from the courthouse just before Lee's defense was to begin.

Upon discovering that Lee's three alibi witnesses were not present in the courthouse after the lunch recess, Lee's counsel orally informed the court of that fact and requested that the court grant a continuance in order for him to attempt to secure the testimony of the witnesses. Trial counsel also informed the court that the witnesses were thought to be still in town, because Lee's mother and stepfather had plans to attend a religious activity in Kansas City that evening. The trial court announced that the trial could not be continued to the following day, Friday, because the judge intended to be at the hospital when his daughter had surgery. The trial court also informed the parties that the trial could not be continued to the following Monday, because the judge had another trial set to commence that day. The state trial judge concluded, without a scintilla of evidence or a shred of information as to why the alibi witnesses were absent, and without making any attempt to enforce the subpoenas for their attendance, that the alibi witnesses had "abandoned" Lee and his defense. As a result of the denial of Lee's oral motion for a continuance, no alibi defense was presented, and not surprisingly--indeed inevitably--Lee was convicted by the state court jury.

On direct appeal, the Missouri Court of Appeals affirmed the denial of Lee's motion for a continuance, concluding that the denial of the motion was proper, because Lee's counsel failed to comply with two Missouri Supreme Court Rules, Rules 24.09 and 24.10. Rule 24.09 requires that motions for continuances be in writing and supported by affidavits, unless the adverse party consents to an oral application. Rule 24.10 sets out the information that must be included in a motion for a continuance that is grounded on the absence of a witness. The state trial court, however, had not relied upon either of these rules in denying Lee's motion for a continuance, nor had the state resisted the motion on these grounds.

In this action for habeas corpus relief, Lee asserts that the denial of his motion for a continuance violated his federal right to due process. The federal district court to which Lee's petition for habeas...