Mack v. Caspari

• Decision Date: 21 October 1996
• Docket Number: No. 95-2634,95-2634
• Parties: Freddie MACK, Appellant, v. Paul D. CASPARI, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 637

92 F.3d 637

Freddie MACK, Appellant, v. Paul D. CASPARI, Appellee.

No. 95-2634.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 12, 1996.

Decided Aug. 8, 1996.

Rehearing and Suggestion for Rehearing

En Banc Denied Oct. 21, 1996. ^*

Cheryl A. Rafert, St. Louis, MO, argued, for appellant.

Frank A. Jung, Asst. Atty. Gen., Jefferson City, MO, argued, for appellee.

Before MAGILL, HEANEY, and MURPHY, Circuit Judges.

MAGILL, Circuit Judge.

Appellant Freddie Mack appeals the district court's ¹ denial of a writ of habeas corpus under 28 U.S.C. § 2254. Mack argues that the district court erred in (1) failing to provide habeas relief on the ground that Mack had been abandoned by state postconviction counsel, (2) denying habeas relief on the merits of three alleged trial errors, and (3) failing to hold an evidentiary hearing. We affirm.

I.

In the early morning of July 9, 1985, Michael Tracy and Robert Schaffner, both of whom had been drinking beer and taking amphetamines, were in a car parked in the "Stroll" area of St. Louis, Missouri, which is known for prostitution. While speaking with several prostitutes, Tracy and Schaffner were attacked and robbed by three men. One of the robbers, identified at trial as petitioner Mack, shot both Tracy and Schaffner in the stomach. On July 30, 1985, Mack was indicted in Missouri state court on two counts of first degree assault, two counts of Mack entered a plea of not guilty, and the case proceeded to trial before a jury in January 1986. Mack was subsequently convicted on all counts. He was sentenced to two consecutive terms of thirty years imprisonment for assault, two concurrent terms of twenty years imprisonment for robbery, and a consecutive term of life imprisonment for armed criminal action. Mack's convictions were affirmed on direct appeal. See State v. Mack, 725 S.W.2d 78 (Mo.App.1987) (per curiam).

first degree robbery, and one count of armed criminal action.

On February 4, 1988, Mack filed a pro se motion for postconviction relief pursuant to Missouri Rule 29.15, arguing that he had received ineffective assistance of counsel for a variety of reasons. On March 17, 1988, the state public defender's office was appointed to represent Mack in his Rule 29.15 motion. Mack retained private counsel to pursue the motion, and the appointed counsel withdrew. Because Rule 29.15(f) required Mack's retained counsel to file an amended motion within thirty days of his March 25, 1988, appearance, the Rule 29.15 court notified Mack on May 26, 1988, that no amended motion would be accepted. On June 3, 1988, Mack moved to dismiss his pro se motion without prejudice, but the Rule 29.15 court denied the motion. On June 10, 1988, the Rule 29.15 court held a hearing on the merits of Mack's pro se motion, and denied postconviction relief. Mack's attorney filed a second motion on June 29, 1988, ² and the Rule 29.15 court refused to consider the untimely second motion. The Missouri Court of Appeals affirmed both the refusal to consider the second motion and the denial of postconviction relief. See Mack v. State, 775 S.W.2d 288, 290-92 (Mo.App.1989).

On January 31, 1994, Mack petitioned the Missouri Supreme Court for a writ of habeas corpus, which was denied on February 22, 1994. Mack brought the instant habeas petition before the district court on April 20, 1994, and the case was referred to a magistrate judge for a report and recommendation. Without specifically addressing Mack's claim that his postconviction counsel had abandoned him, the magistrate judge recommended that the habeas petition be denied. Following consideration of objections, the district court declined to hold an evidentiary hearing and adopted the report and recommendation of the magistrate judge. ³ Mack now appeals the denial of his petition for habeas relief. ⁴

II.

Mack contends on appeal that he was abandoned by his state postconviction counsel, and that the district court erred in not granting habeas relief so that Mack could secure a second Rule 29.15 hearing in a Missouri state court. In Luleff v. State, 807 S.W.2d 495 (Mo. banc.1991), the Missouri Supreme Court recognized a limited right to effective assistance of counsel in postconviction hearings. Where the record of a postconviction proceeding "shows not mere ineffectiveness but such a total default in carrying out the obligations imposed upon appointed counsel by Rule 29.15(e) as to constitute abandonment," State v. Bradley, 811 S.W.2d 379, 384 (Mo. banc.1991) (per curiam), new counsel should be appointed and the petitioner allowed a new hearing. Because the filing of an amended petition out of time can constitute abandonment, see Sanders v. State, 807 S.W.2d 493, 494-95 (Mo. banc.1991), Mack argues that he was denied due process of law and equal protection Although Mack referred to abandonment by postconviction counsel in both his petition for habeas relief, see Pet. at 5p, and in a memorandum of law supporting the petition, see Mem. at 9 (April 20, 1994), the district court did not construe Mack's petition as a claim of abandonment by postconviction counsel. Rather, the district court considered this as a complaint that the state court erred in "summarily enter[ing] an order denying petitioner the chance to amend his pro se Rule 29.15 motion or to grant him a hearing without first notifying petitioner of its intent to do so." Report & Recommendation at 9. The appellee argues that we are precluded from considering this argument. See, e.g., Mellott v. Purkett, 63 F.3d 781, 784 (8th Cir.1995) (this Court may not "consider legal arguments raised for the first time on appeal, except for plain error"). We disagree. While we do not require a district court to read a "pro se motion so clairvoyantly so as to recognize [an] unarticulated argument," id., neither is this rule "meant to trap a petitioner who has poor drafting skills. The stakes in habeas cases are too high for a game of legal 'gotcha.' " Schneider v. Delo, 85 F.3d 335, 339 (8th Cir.1996) (discussing state exhaustion requirement). While Mack could have, and in fairness to both the district court and the opposing party should have, been clearer in his presentation of this issue in the district court, we conclude that this issue was adequately raised in the district court to allow review by this Court. See Turner v. Armontrout, 922 F.2d 492, 493 n. 1 (8th Cir.1991) (pro se habeas petitions are construed liberally).

because he was not granted a second hearing.

Mack has failed to state a cognizable claim for habeas relief. It is well settled that "[t]here is no constitutional right to an attorney in state post-conviction proceedings," Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991), and that "[c]onsequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings." Id. Mack is therefore left only with a claim that the state court erred by incorrectly applying its own procedural rule in a postconviction hearing--a consideration beyond this Court's review. See Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir.1994) ("A federal court may not re-examine a state court's interpretation and application of state law."); Smith v. Lockhart, 882 F.2d 331, 334 (8th Cir.1989) (finding no due process violation where there was only an "alleged violation of a state rule concerning post-conviction proceedings, an area in which a defendant is not necessarily afforded constitutional protections"), cert. denied, 493 U.S. 1028, 110 S.Ct. 739, 107 L.Ed.2d 757 (1990).

While a contention that a state court has applied a procedural rule arbitrarily to a defendant's prejudice may state a federal constitutional due process violation, see, e.g., Evitts v. Lucey, 469 U.S. 387, 401, 105 S.Ct. 830, 839, 83 L.Ed.2d 821 (1985) ("when a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution--and, in particular, in accord with the Due Process Clause"), such a contention could not be made under the facts of this case. The rule allegedly violated by Mack's Rule 29.15 court did not even exist until long after the decision had become final. The Luleff opinion, creating the abandonment rule, was filed on April 9, 1991, while Mack's unsuccessful appeal of the denial of his Rule 29.15 petition was decided on June 27, 1989, almost two years earlier. Mack's precise argument, therefore, is not even that the state courts violated an existent state procedural rule, but that in adhering to settled state law, the courts deprived him of due process and equal protection by failing to anticipate future state law developments. We find this argument unsound.

The dissent asserts that Missouri courts consistently applied the abandonment rule prior to its creation in Luleff. See infra at 644-47. We disagree. In Sanders, 807 S.W.2d at 494, filed the same day as Luleff, the court stated:

Until today this Court has not deviated from its firm position that failure to timely file a motion constitutes a complete bar to consideration of a movant's claims, even when the claims are attributable entirely to inaction of counsel. Our courts have The dissent would have us ignore this clear statement of Missouri state law by the highest Missouri state court. See infra at 646. This we simply cannot do. See Wainwright v. Goode, 464 U.S. 78, 84, 104 S.Ct. 378, 382, 78 L.Ed.2d 187 (1983) (per curiam) ("the views of the State's highest court with respect to state law are binding on the federal courts"). ⁵

traditionally held that postconviction proceedings may not under any circumstances be used to challenge the effectiveness of postconviction counsel.

III.

Mack next challenges the district court's denial of habeas relief on the basis of several trial errors. Mack alleges that he received an unfair trial because two members of the jury were biased, because a witness...