Leisure v. Bowersox

Decision Date13 January 1998
Docket NumberNo. 4:92CV2193-DJS.,4:92CV2193-DJS.
PartiesDavid R. LEISURE, Petitioner, v. Michael BOWERSOX,<SMALL><SUP>1</SUP></SMALL> Superintendent, Potosi Correctional Center, and Jeremiah &#34;Jay&#34; Nixon, Attorney General of the State of Missouri, Respondents.
CourtU.S. District Court — Eastern District of Missouri

Cordell P. Schulten, Sr., Belz and Jones, St. Louis, MO, Barry A. Short, Lewis and Rice, St. Louis, MO, John W. Simon, Inglish and Monaco, P.C., Jefferson City, MO, David Leisure, Pro se, for Petitioner.

Stacy L. Anderson, Asst. Atty. Gen., Jefferson City, MO, Millie E. Aulbur, Jefferson City, MO, for Respondents.

MEMORANDUM AND ORDER

STOHR, District Judge.

I. INTRODUCTION

This matter is before the Court on David R. Leisure's amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 7, 1987, in the Circuit Court of the City of St. Louis, Missouri, a jury found petitioner guilty of capital murder. On April 9, 1987, in accordance with the jury's verdict, petitioner was sentenced to death. On direct appeal, the Missouri Supreme Court affirmed the conviction and sentence. State v. Leisure, 749 S.W.2d 366 (Mo. banc 1988). Thereafter, in state court, pursuant to Rule 29.15 of the Missouri Rules of Court, petitioner filed for postconviction relief seeking to vacate his sentence. Petitioner's amended Rule 29.15 motion] was denied after an evidentiary hearing. The Missouri Supreme Court affirmed the denial of postconviction relief. Leisure v. State, 828 S.W.2d 872 (Mo. banc 1992).

Petitioner filed his original pro se petition for a writ of habeas corpus in this Court on October 30, 1992. The Court appointed counsel to represent petitioner and on August 31, 1993, petitioner filed his amended petition. Subject to further consideration upon the examination of the merits of the amended petition, the Court denied petitioner's request for an evidentiary hearing and petitioner's ex parte request for leave to conduct a psychiatric examination.

II. BACKGROUND

To resolve petitioner's claims, an understanding of the complex factual background of this case is necessary. On direct appeal, the Missouri Supreme Court summarized the facts as follows:

According to the record, the murder in question was the product of simultaneous power struggles within an organized crime entity described as being composed of persons of Syrian and Lebanese descent within St. Louis and Local 110 of the Laborers Union, which was headed by the victim, James A. Michaels, Sr.; Michaels was the reputed head of "the Syrians." The record further reveals that a second, competing organized crime unit existed in St. Louis known as "the Italians," headed by Anthony Giordano.

In early 1977, Ray Massud promised Anthony Leisure, appellant's cousin, that he would succeed Massud as Local 110's business manager. While in the hospital with a terminal illness, Massud changed his mind, asking Anthony Leisure to accept the job of assistant business manager and to allow John Massud, his son, to serve as business manager of the union. Anthony Leisure agreed. On June 30, 1977, after Ray Massud's death, the appointments were made to the Union positions in accordance with the agreement. Under the "terms" of the agreement, Leisure would control the hiring and firing of union officers; John Massud would operate the union office.

John Massud began to hire Union officers without consulting Anthony Leisure. Moreover, Massud hired Vince Giordano, nephew of Anthony Giordano, as a union organizer. Mike Trupiano, another nephew of Anthony Giordano, became Union president in May of 1979, with Massud's blessing and, again, without Anthony Leisure's consent.

Angered by Massud's breach of their agreement and his resulting loss of power within the union, Anthony Leisure met with his brother Paul, Ronald Broderick, John Ramo, Charles Loewe and appellant to consider whether John Massud should be murdered for violating the agreement. The group reached no decision. The Leisures feared Massud's political ties in St. Louis City politics.

Later, Massud complaining that the union payroll was too high, announced that he planned to fire Broderick. Broderick was the only union officer Anthony Leisure had appointed. The Leisures, including appellant, Broderick, Ramo and a Fred Prator [sic], convened another meeting. Again, the subject was the preservation of Anthony's power within the union. The group again thought it unwise to kill Massud for the reasons earlier stated; nor did they wish to start a war with the Italians by killing Trupiano. They selected James Michaels, Sr., as their victim. Michaels' death would enhance the Leisures' position among the Syrians. It would also send a strong message to the union leadership. The Leisures also believed that Michaels had protected the murderer of appellant's older brother, Richard.

After an unsuccessful attempt to shotgun Michaels at a St. Louis restaurant, appellant and his coconspirators decided to bomb Michaels' car. On September 4, 1980, appellant and Ramo stole a car that matched the make and model of Michaels' car, and practiced planting a bomb. Appellant followed Michaels around the city to learn of his habitual movements.

On September 17, 1980, appellant spotted Michaels' car in the parking lot of St. Raymond's Catholic Church. The participants in the plan to kill Michaels moved into action. Anthony Leisure, Broderick and Ramo picked up a van belonging to Broderick's son. They drove the van to another location, where they retrieved the bomb and joined appellant. Prepared now to kill, they drove to St. Raymond's Church, parking the van next to the victim's car. Appellant slid under Michaels' car and attached the bomb; the quartet drove the van to a strategic place where they could see Michaels return to his car. The victim came out of the church with his grandson, James Michaels, III, a Local 110 union organizer. The senior Michaels entered the car and began talking with his grandson through an open window. Appellant suggested that the bomb be detonated at that instant in order to kill both Michaels. Anthony Leisure convinced appellant otherwise.

The van followed as the elder Michaels drove away from the church. Anthony tried to detonate the bomb several times without success; the radio controlled detonating device refused to work. For a moment, the murderers lost Michaels but saw his car on I-55. Giving chase, they caught their victim. Anthony again threw the switch on the detonating device: the bomb did not go off. Frustrated, Anthony threw the switch again and again until finally the bomb exploded. The victim's upper torso was ripped from the rest of his body and thrown from the car. It struck the windshield of the vehicle following.

The van immediately left the highway and headed toward Illinois. Breaking up the remote control detonating devices, the murderers threw pieces out as the van sped along. In Illinois, they washed the van several times. Returning to Missouri, they stopped at an automobile supply store where appellant bought new windshield wiper blades in an attempt to remove all traces of the explosion from the van. A stop at a drug store brought rubbing alcohol and shaving lotions, which were used to remove the odor of explosives from the hands of the killers.

Approximately a week after the murder, Paul Leisure met with John Vitale, the new leader of the Italians. (Anthony Giordano had died.) Leisure and Vitale agreed that the Syrians would control the Local 110. Two relatives of Michaels lost their union jobs immediately after the murder.

State v. Leisure, 749 S.W.2d at 369-70. Both Ronald Broderick and John Ramo testified at petitioner's trial regarding the above events.

To fully analyze petitioner's claims, an understanding of the history of this case and several related criminal proceedings is also necessary. The following is an overview of some of the relevant events relating to the deadly crime war which began sometime in late 1979 in the St. Louis, Missouri area involving the control of union locals.

As stated above, on September 17, 1980, James A. Michaels, Sr., ("Jimmy Michaels") was killed when a bomb exploded in his car while he was driving on Interstate 55 in St. Louis. On August 11, 1981, petitioner's older cousin, Paul Leisure, was seriously maimed, losing both legs and suffering hand, facial and other injuries when a bomb exploded in his automobile parked in front of his home in St. Louis. On September 11, 1981, Charles John Michaels, the grandson of Jimmy Michaels, and Dennis Day were injured in a shooting at The Edge restaurant in St. Louis. On October 16, 1981, George "Sonny" Faheen was killed when a bomb exploded in his car parked in the Mansion House garage in St. Louis. On October 17, 1981, Michael Kornhardt was arrested on state capital murder charges in connection with Faheen's death and subsequently released on bond. On July 31, 1982, Kornhardt's body was found in St. Charles County, Missouri. Kornhardt died from a gunshot wound.

On August 4, 1982, petitioner was arrested on state capital murder charges in connection with Faheen's death and, subsequently, released on bond. In exchange for immunity, on August 6, 1982, Fred Prater testified before a federal grand jury in the United States District Court for the Eastern District of Missouri regarding the murder of Michael Kornhardt, the shooting at The Edge restaurant and the car bombing of Paul Leisure. On September 16, 1982, petitioner was arrested on state assault charges arising out of the shooting at The Edge restaurant. Subsequently, petitioner was again released on bond.

On April 13, 1983, a six-count federal indictment was filed charging Paul Leisure, Anthony Leisure, ...

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