McDonald v. Bowersox

• Decision Date: 23 January 1997
• Docket Number: No. 95-3863,95-3863
• Citation: 101 F.3d 588
• Parties: Samuel Lee McDONALD, Appellant, v. Michael BOWERSOX, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 588

101 F.3d 588

Samuel Lee McDONALD, Appellant, v. Michael BOWERSOX, Appellee.

No. 95-3863.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 9, 1996.

Decided Dec. 2, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 23, 1997.

Richard Sindel, argued, Clayton, MO, for appellant.

Stephen Hawke, Assistant Attorney General, argued, Jefferson City, MO, for appellee.

Before McMILLIAN, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MAGILL, Circuit Judge.

Samuel Lee McDonald, a death row inmate in Missouri state prison, was convicted and sentenced to death by a jury on February 24, 1982, for the May 16, 1981 shooting of an off-duty police officer. After repeated filings for postconviction relief in Missouri state court, McDonald filed his first federal petition for a writ of habeas corpus in 1989. The district court ¹ denied McDonald's petition in 1995. McDonald now appeals the district court's decision. McDonald argues that the district court erred in failing to hold an evidentiary hearing to establish his claim of ineffective assistance of trial counsel and that his constitutional rights were violated by the following: (1) the state trial court's failure to appoint a psychiatric expert to help McDonald prepare his defense; (2) the ineffective assistance of trial counsel; (3) an improper penalty phase argument by the state; (4) improper trial court conduct; (5) the trial court's refusal to grant McDonald relief from the aggravating circumstance that the offense was committed for the purpose of receiving money; (6) the trial court's failure to grant McDonald's motion for a judgment of acquittal; and (7) an improper jury instruction regarding mitigating circumstances. We affirm the decision of the district court that denied McDonald a writ of habeas corpus.

I.

On May 16, 1981, Robert Jordan, an off-duty police officer, and his eleven-year-old daughter went to the Forest Package Liquor Store in St. Louis, Missouri, to buy snacks for the weekend. They arrived at the store around 11 p.m. At the time, Jordan was dressed as a civilian. However, in compliance with his police department's official policy, Jordan was carrying his concealed service revolver.

Meanwhile, McDonald and his girlfriend, Jackie Blue, had been out driving in the vicinity of the liquor store for several hours. Shortly before 11 p.m., McDonald parked the car a couple of blocks from the store and told Blue that he would be back soon. He exited the car and then walked to a street corner near the Forest Package Liquor Store.

When Jordan and his daughter left the store, McDonald confronted them with a handgun. McDonald fired, wounding Jordan in the chest and left arm. Jordan's daughter ran back into the store, and from there she witnessed her father's killing.

McDonald stood over Jordan with his handgun pointed at Jordan. Jordan handed McDonald his wallet, which contained Jordan's police badge. Jordan's daughter testified that she could see her father's badge in his wallet from where she was standing. McDonald began to turn away from Jordan, but he then turned back again and fired another shot into Jordan's chest.

As McDonald fled with the wallet, Jordan managed to fire several shots with his service revolver, hitting McDonald three times. Jordan then stumbled back into the store and asked for the police. He died shortly thereafter.

McDonald made his way back to Blue's car and asked her to take him to the hospital. McDonald soon changed his mind, however, and asked her to take him to a friend's house for medical attention. When they found that the friend was not there, McDonald stuffed his shirt down a sewer drain and instructed Blue to take him to a veterans hospital. At the hospital, he told the medical staff that he had been shot in a robbery that took place in a part of town different from where he had robbed and shot Jordan.

Despite this story, the police soon discovered that McDonald was the one who had shot and killed Jordan. The police found Jordan's wallet in the back of the car owned by Blue, and retrieved McDonald's blood-soaked shirt from the drain pipe. McDonald was arrested for Jordan's murder, and stood trial in Missouri state court for the crime. At trial, the robbery and shooting were described by Jordan's eleven-year-old daughter as well as two other eyewitnesses.

McDonald was convicted by a jury of having killed Jordan, an off-duty police officer, "for the purpose of receiving money or any other thing of monetary value...." State v. McDonald, 661 S.W.2d 497, 500 (Mo.1983) (en banc) (McDonald I ), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1985). The jury sentenced McDonald to death and the Missouri Supreme Court affirmed both the conviction and the sentence. Id.

McDonald filed a pro se motion in Missouri state court for postconviction relief and for an evidentiary hearing, pursuant to Missouri Supreme Court Rule 27.26. After counsel was appointed and amended motions were filed, a four-day evidentiary hearing was held in October 1986. A Missouri state court denied McDonald's motion for postconviction relief on January 20, 1987. See McDonald v. State, 758 S.W.2d 101, 103 (Mo.Ct.App.1988) (McDonald II ). The Missouri Court of Appeals affirmed that decision. Id.

In 1989, McDonald filed pro se his first petition for federal habeas corpus relief. He filed an amended petition in 1990 and requested an evidentiary hearing in 1991. The district court granted the motion for an evidentiary hearing on December 1, 1992. McDonald v. Delo, 897 F.Supp. 1224, 1235 (E.D.Mo.1995) (McDonald III ). However, the district court subsequently vacated that order and entered a judgment denying habeas relief in 1995. See id. at 1236. In a thirty page opinion, the district court addressed McDonald's fifty-plus claims, many of which the district court found to be procedurally barred. McDonald now appeals the district court's decision to deny McDonald an evidentiary hearing as well as seven of the claims rejected by the district court.

II.

We review the district court's findings of fact for clear error, Fairchild v. Lockhart, 979 F.2d 636, 639 (8th Cir.1992), cert. denied, 509 U.S. 928, 113 S.Ct. 3051, 125 L.Ed.2d 735 (1993), and we review the district court's conclusions of law de novo. Hendrix v. Norris, 81 F.3d 805, 807 (8th Cir.1996). "In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991) (citing 28 U.S.C. § 2241). Accordingly, "[a] federal court may not re-examine a state court's interpretation and application of state law." Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir.1994); see Estelle, 502 U.S. at 67-68, 112 S.Ct. at 480 ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). Pursuant to 28 U.S.C. § 2254(d) (1994), we presume state court findings of fact to be correct in habeas proceedings unless the petitioner establishes, the respondent admits, or the record shows otherwise or the petitioner produces evidence that convincingly establishes that the state court's findings were erroneous. See generally Thompson v. Keohane, --- U.S. ----, ---- - ----, 116 S.Ct. 457, 463-64, 133 L.Ed.2d 383 (1995); see also Wayne v. Benson, 89 F.3d 530, 534 (8th Cir.1996) (construing 28 U.S.C. § 2254(d)). ²

III.

McDonald argues that the district court erred when it denied his request for an evidentiary hearing, thereby preventing him from establishing his claim of ineffective assistance of counsel.

We have held that in order for a habeas petitioner to be entitled to an evidentiary hearing in federal court, he must show "both [ (1) ] cause for his failure to adequately develop the facts material to his ineffective assistance claim in the postconviction state court hearing and [ (2) ] actual prejudice resulting therefrom; alternatively, petitioner must show that a fundamental miscarriage of justice would result from the denial of an evidentiary hearing in federal court." McCann v. Armontrout, 973 F.2d 655, 658 (8th Cir.1992) (construing Keeney v. Tamayo-Reyes, 504 U.S. 1, 10-12, 112 S.Ct. 1715, 1720-22, 118 L.Ed.2d 318 (1992)), cert. denied, 507 U.S 942, 113 S.Ct. 1342, 122 L.Ed.2d 724 (1993).

Although McDonald has not had an evidentiary hearing in federal court, he had an evidentiary hearing in state court in 1986. See McDonald II, 758 S.W.2d at 103. The state court considered at that time numerous claims of ineffective assistance of counsel. Both the state court that held the evidentiary hearing and the Missouri Court of Appeals that reviewed the state court's decision found that McDonald was not denied effective assistance of counsel. See McDonald II, 758 S.W.2d at 103, 105-06.

McDonald has not alleged any cause that prevented him from adequately developing the facts material to his ineffective assistance of counsel claim during his October 1986 state court postconviction evidentiary hearing, which was held over the course of four days. Furthermore, McDonald has not shown actual prejudice; the evidence is overwhelming that McDonald is factually guilty of murder. Finally, having considered McDonald's claim of ineffective assistance of counsel on the merits, infra at § V, there is ample support for our conclusion that denying McDonald an evidentiary hearing does not result in a fundamental miscarriage of justice.

IV.

McDonald next argues that he is entitled to a writ of habeas corpus because he was denied the assistance of a psychiatric expert during the guilt and penalty phases of his trial. We disagree.

McDonald indicated to his counsel that he might have a mental disease or defect in January 1982. See McDonald II, 758 S.W.2d at 105. He made this claim after reading about Vietnam Stress Syndrome, which is also called Posttraumatic Stress Disorder. I...