McDonald v. Bowersox, 97-8201

• Decision Date: 22 September 1997
• Docket Number: No. 97-8201,97-8201
• Citation: 125 F.3d 1183
• Parties: Samuel Lee McDONALD, Petitioner, v. Michael BOWERSOX, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1183

125 F.3d 1183

Samuel Lee McDONALD, Petitioner, v. Michael BOWERSOX, Respondent.

No. 97-8201.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 19, 1997.

Decided Sept. 22, 1997.

Michael A. Gross, St. Louis, MO, for Petitioner.

Stephen David Hawke, Jefferson City, MO, for Respondent.

Before McMILLIAN, WOLLMAN, and MAGILL, Circuit Judges.

PER CURIAM.

Samuel Lee McDonald was convicted by a jury in Missouri state court of capital murder and sentenced to death. McDonald's execution is currently scheduled for September 24, 1997, at 12:01 a.m. The district court for the Eastern District of Missouri denied McDonald's initial federal habeas petition, see McDonald v. Delo, 897 F.Supp. 1224 (E.D.Mo.1995) (McDonald I), and this Court affirmed. See McDonald v. Bowersox, 101 F.3d 588 (8th Cir.1996) (McDonald II), cert. denied, --- U.S. ----, 117 S.Ct. 2527, 138 L.Ed.2d 1027 (1997). McDonald now moves this Court for permission to file a successive federal habeas petition. See 28 U.S.C.A. § 2244(b)(3)(A) (West Supp.1997). We deny this motion.

I.

On May 16, 1981, McDonald robbed and murdered off-duty police officer Robert Jordan while Officer Jordan's eleven-year-old daughter Rochelle watched. McDonald was convicted of capital murder and sentenced to death on February 24, 1982.

During the ensuing decade-and-a-half, McDonald pursued post-conviction and collateral relief in federal and Missouri state courts, seeking to overturn his conviction and sentence. See McDonald II, 101 F.3d at 591-92 (describing history of litigation). In 1989, McDonald filed his first federal habeas petition pursuant to 28 U.S.C. § 2254 (1988). McDonald raised over fifty claims in his first federal habeas petition, including a claim that his trial attorney rendered ineffective assistance of counsel by failing to notify the trial court that McDonald intended to rely on a defense of mental disease or defect.

To support his claim of ineffective assistance of counsel, McDonald relied on the 1986 post-trial testimony of Dr. John Waite. Dr. Waite testified that McDonald suffered from Post-Vietnam Syndrome, a form of post-traumatic stress disorder experienced by veterans of the war in Vietnam. As McDonald stated, "Dr. Waite concluded that [McDonald's] loss of control and 'trained' hyper-arousal due to Post-Vietnam Stress Disorder, caused [McDonald] to act in an impulsive manner, impaired or extinguished his ability to deliberate, and rendered him incapable of reflection." Appellant's Br. in Case No. 95-3863 at 9. The district court rejected McDonald's claim of ineffective assistance of counsel, see McDonald I, 897 F.Supp. at 1249-50, and this Court affirmed. See McDonald II, 101 F.3d at 595. In affirming, we noted that McDonald had failed to demonstrate prejudice arising from his counsel's alleged ineffectiveness because "there was minimal evidence tending to prove that McDonald had a mental disease or defect." Id.

In his instant motion for permission to file a successive habeas petition, McDonald states that his proposed petition

raises one ground of constitutional error: whether Mr. McDonald would be deprived of due process of law and subjected to cruel and unusual punishment, in violation of his rights under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, if his execution was permitted to proceed without reconsideration of the issue concerning the jury's failure to learn of the genesis, existence, and effect of Mr. McDonald's psychiatric illness prior to its recommendation that he be put to death. The passage of time and evolution of diagnostic techniques and capabilities have rendered it constitutionally and morally incomprehensible in 1997 that a decorated Vietnam veteran actively suffering from service-related post-traumatic stress disorder might be executed after a trial in which no mention was made of his mental illness and diminished capacities. These claims are successive, in that they were not presented in petitioner's prior application for habeas corpus relief pursuant to 28 U.S.C. § 2254. This successive petition should not be dismissed, however, because the factual predicate for the claims could not have been discovered previously through the exercise of due diligence....

Mot. to Authorize the Filing of a Successive Habeas Pet. and for Stay of Execution of His Sentence of Death at 2 (Sept. 19, 1997) (Motion). While the body of McDonald's instant motion makes extensive references to Dr. Waite's testimony, see, e.g., id. at 6-7, nn. 5-6, it does not refer to any evidence not presented during the adjudication of McDonald's first federal habeas petition. Rather, McDonald merely asserts that "[t]his Court should grant Petitioner Permission to file a Successive Habeas Corpus Petition so that the federal courts can determine the appropriateness and the constitutionality of permitting an individual to be executed when the trial was originally reviewed for constitutional error in both state and federal courts based on notions about science which are no longer valid." Id. at 9.

II.

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1217 (1996) (AEDPA), "changed the conditions under which second or successive applications [for federal habeas relief] may be considered and decided on their merits." Ruiz v. Norris, 104 F.3d 163, 164 (8th Cir.1997), petition for cert. filed, (U.S. Jan. 7, 1997) (No. 96-7352). Pursuant to the relevant sections of the AEDPA, codified at 28 U.S.C. § 2244(b),

(1) A claim presented in a second or successive habeas corpus application under [28 U.S.C.] section 2254 that was presented in a prior application shall be dismissed.

(2) A claim presented in a second or successive habeas corpus application under [28 U.S.C.] section 2254 that was not presented in a prior application shall be dismissed unless--

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C.A. § 2244(b)(1) & (2) (West Supp.1997).

The claim that McDonald wishes to raise in a successive habeas petition--that because of McDonald's mental illness it is a violation of the United States Constitution to execute him--shares the same factual predicate as his prior claim of ineffective assistance of counsel based on counsel's failure to pursue a mental disease or defect defense. It is therefore likely that this proposed claim would be barred by 28 U.S.C.A. § 2244(b)(1) as a claim already raised in an initial habeas petition. Cf. Wainwright v. Norris, 121 F.3d 339, 340-41 (8th Cir.1997) (interpreting § 2244(b)(1)); Zeitvogel v. Bowersox, 103 F.3d 54, 55-56 (8th Cir.1996) (same). Even assuming, however, that...