Malone v. Vasquez, 96-1613

• Decision Date: 11 May 1998
• Docket Number: No. 96-1613,96-1613
• Citation: 138 F.3d 711
• Parties: Kelvin MALONE, Plaintiff-Appellant, v. Daniel VASQUEZ, Warden, San Quentin State Prison; Jeremiah W. (Jay) Nixon, Missouri Attorney General, Defendants-Appellees
• Court: U.S. Court of Appeals — Eighth Circuit

Page 711

138 F.3d 711

Kelvin MALONE, Plaintiff-Appellant, v. Daniel VASQUEZ, Warden, San Quentin State Prison; Jeremiah

W. (Jay) Nixon, Missouri Attorney General,

Defendants-Appellees.

No. 96-1613.

United States Court of Appeals,

Eighth Circuit

Submitted May 9, 1997.

Decided Feb. 26, 1998.

As Corrected March 11, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied May

11, 1998. ^*

Curtis L. Blood, Collinsville, IL, argued, for Plaintiff-Appellant.

Stacy L. Anderson, Asst. Attorney Gen., Jefferson City, MO, argued, for Defendants-Appellees.

Before MURPHY and HEANEY, Circuit Judges and ROSENBAUM, ¹ District Judge.

MURPHY

Kelvin Malone, who was convicted of murder in Missouri and sentenced to death, appeals from the denial by the district court ² of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We affirm.

I

Kelvin Malone was convicted of the 1981 murder of William Parr, a 62 year old taxi driver in Berkeley, Missouri, a St. Louis suburb. Richard Elder, a fellow Yellow Cab driver, testified at Malone's trial that around 11:45 p.m. on March 17, 1981, he was waiting in the cab line at the Greyhound Bus Terminal in St. Louis. Parr was first in line, and Elder heard the dispatcher tell Parr to pick up a package at First National Bank for delivery. The bank was less than three blocks from the bus terminal, and such deliveries were top priority. Parr left for the bank immediately. Elder passed the bank about four minutes after Parr left on the delivery run and saw Parr's cab parked in front of the bank with the dome light on.

About a block from the bank at the corner of Sixth and Locust, Elder saw a black man with a suitcase trying to hail a cab. Elder later identified this man as Kelvin Malone. On his way home that night, Elder heard the dispatcher repeatedly calling Parr with no answer. Daniel Ward, a First National Bank employee, testified that he left the bank at 1:00 a.m. and saw a cab parked out front with a black man sitting in the back seat.

Police later found an abandoned cab at 6105 Avila in Berkeley. A local resident reported seeing a Yellow Cab turn onto Avila at around 1:20 a.m. on March 18. Later that morning police found Parr's body in Entrance Park in Berkeley. Parr had been shot and was lying face down with blood coming from his nose and right ear. He was taken to Christian Northeast Hospital where he was pronounced dead on arrival.

There was evidence that Kelvin Malone had arrived in St. Louis from California on the evening of March 17 with a suitcase and two .25 caliber pistols. Around 1:30 a.m. on March 18, Emmanuel Bego, who lived with Michael Crenshaw in Berkeley, heard a knock at the door. Bego heard Crenshaw say "Kelvin" when he went to the door, but Bego did not see who was there. Later that day Crenshaw left for California with Malone in Crenshaw's car. After they departed, Bego found a Greyhound bus ticket in the basement for a trip leaving Los Angeles on March 15, with scheduled arrival in St. Louis at 12:40 a.m. on March 18.

California police found Malone and Crenshaw asleep in Crenshaw's car in San Jose on March 24 and asked for identification. The men drove off instead and were apprehended after a high speed chase. The officers found a small suitcase and two loaded .25 caliber pistols in the car. Three bullets test fired from one of these guns were later compared to a .25 caliber slug taken from Parr's brain. Initial comparisons with the naked eye by St. Louis police were inconclusive, but an FBI ballistics examiner using a comparison microscope determined that all four bullets came from one of the guns which Malone had carried when he arrived in St. Louis and which were found in the car at his arrest.

Missouri charged Malone with the murder of William Parr. By the time of the trial on this charge in 1984, Malone had been convicted and sentenced to death in California for two murders that took place in that state just a few days after Parr was killed in Missouri. ³ Counsel was appointed in the Parr case on November 28, 1983, and Malone directed him to move to trial as quickly as possible; counsel began to meet with Malone about a month before trial commenced on March 26, 1984, and began detailed trial preparation two weeks before trial. In preparation for trial, counsel reviewed with Malone police reports, his earlier psychological examination, and other types of information. Malone presented no evidence during the guilt phase of his trial, and the only evidence he presented during the penalty phase was expert testimony by Professor James Gilsinan that the death penalty is not an effective deterrent. He also offered the testimony of Father Francis Cleary related to historical justifications for the death penalty, but it was not received. Malone directed his attorney not to contact members of his family about mitigating evidence because he wanted to avoid causing them additional pain. Malone was convicted on March 30, and on the next day the jury returned a verdict of death. He chose not to appear at sentencing on April 26, 1984, when he was sentenced to death. He was then returned to California where he remains incarcerated. ⁴

Malone's direct appeal of his Missouri conviction was unsuccessful. State v. Malone, 694 S.W.2d 723 (Mo.1985) (en banc). He then sought state postconviction relief under Missouri Criminal Procedure Rule 27.26. Malone v. State, 747 S.W.2d 695 (Mo.Ct.App.1988). His original petition was dismissed without prejudice because he was not in Missouri custody at the time it was filed and Rule 27.26 had a custody requirement. He later refiled his petition under Rule 29.15 after it replaced the earlier rule. The new rule did not require Missouri custody, and the trial court rejected the petition on the merits. Malone appealed to the Missouri Supreme Court which remanded for factual findings on whether Malone had complied with the Rule 29.15 requirement that a petitioner verify that the filing contained all his claims and that he understood they were otherwise waived. The trial court was instructed to make findings on whether this verification requirement had been met and on whether the prosecution had exercised racially motivated peremptory challenges. The court found that Malone had not verified his petition and therefore dismissed it for lack of jurisdiction. The Missouri Supreme Court affirmed, Malone v. State, 798 S.W.2d 149 (Mo.1990) (en banc), and later dismissed as moot Malone's petition to recall the mandate and reinstate his appeal.

Malone then filed this petition for a writ of habeas corpus. He cited over sixty grounds for relief, some of which had been raised in state court and many of which had not. The district court denied his petition after determining that most of the claims were procedurally barred because Malone had failed to verify his petition as required by Rule 29.15 and had also failed to present many of the claims in state court. After a thorough review of the record, the court also concluded that his claims failed on the merits and later denied Malone's motion to alter or amend the judgment.

II.

The state argues that not all of Malone's claims are properly before the court because of the content of his notice of appeal. The district court order denying his petition and considering all his claims was issued on December 4, 1995, but the notice of appeal focuses on a January 17, 1996 order denying his motion to alter or amend the judgment. The notice stated that he was appealing, "... from the final order and judgment issued by the Honorable Judge Jean C. Hamilton on January 17, 1996. This judgment and order denied Mr. Malone's habeas corpus claims of constitutional error...." Malone's notice of appeal indicates he intended to appeal both the denial of his post-judgment motion and the district court's rulings on his constitutional claims. It is appropriate in these circumstances to construe his notice of appeal as encompassing both orders. See Sweet v. Delo, 125 F.3d 1144, 1148 (8th Cir.1997). Because of Malone's apparent intent to appeal both from the judgment denying his petition as well as the subsequent order, we waive the strict requirements of Rule 3(c). See Fed.R.App.P. 2.

Malone wishes to raise many issues on appeal, including various claims of ineffective assistance of counsel. He alleges trial counsel was ineffective in the guilt phase of his trial for failure to call two witnesses who would have testified that they could not identify the black man they had seen in Parr's cab, to call United States District Judge George F. Gunn to testify that he was not harmed during an armed robbery by Malone, to introduce evidence of a polygraph suggesting that Malone did not commit one of the California murders, to prepare adequately for trial, to obtain a stipulation or testimony that two police officers found initial ballistics comparisons inconclusive, and to object to evidence of a towel used to wipe prints from Parr's cab and to evidence that he gave a false name when arrested, to an improper closing argument, to the exclusion for cause of a potential juror based on his refusal to consider the death penalty, and to several jury instructions. He argues that his trial counsel was ineffective in the penalty phase for not presenting mitigating evidence from his family and not obtaining a new psychiatric examination or using the results of his California exam. Malone argues that appellate counsel was ineffective by not raising on direct appeal every issue raised in his postconviction litigation.

Malone also raises claims of prosecutorial misconduct. He claims the prosecution should not have introduced evidence of his prior convictions or misleading testimony by California prosecutor Gary Admire that Malone had admitted in his California trial that he had been in the vicinity where Parr was killed. He also says the prosecution improperly bolstered the credibility of prosecution witnesses, argued facts not in...