McDonald v. Delo

Decision Date11 August 1995
Docket NumberNo. 89-1282C(8),89-1282C(8)
PartiesSamuel Lee MCDONALD, Petitioner, v. Paul DELO, Respondent.
CourtU.S. District Court — Eastern District of Missouri









Richard H. Sindel, Vice-President, Sindel and Sindel, Michael A. Gross, Cheryl A. Rafert, St. Louis, MO, for petitioner Samuel Lee McDonald.

Stephen Hawke, Attorney General of Missouri, Bill Thompson, Assistant Attorney General, Missouri Supreme Court, Jefferson City, MO, for respondent Paul Delo.


STOHR, District Judge.


This matter is before the Court on the petition of Missouri State prisoner Samuel Lee McDonald, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted in the Circuit Court of the City of St. Louis on one count of capital murder, R.S.Mo. § 565.020, and a sentence of death, R.S.Mo. §§ 565.006-.008. After exhausting his available state law remedies, either by fairly presenting his claims to the Missouri courts or because he is now procedurally barred from doing so, petitioner initiated this action. In his petition, Mr. McDonald asserts eighteen grounds for relief with several subparts to many of those grounds. The petition was filed July 7, 1989 and assigned to the Honorable Clyde S. Cahill. Judge Cahill subsequently assumed senior status, and the matter was reassigned to the Honorable George F. Gunn. Judge Gunn recused himself, and the matter was transferred to this Court on October 18, 1993.


Petitioner was arrested on May 17, 1981 and charged with the capital murder of Robert Jordan, an off-duty St. Louis County police officer. On February 24, 1982, following eight days of trial, a jury found petitioner guilty of murder, and based on its finding that petitioner committed the murder "for the purpose of receiving money or other thing of monetary value by taking Jordan's wallet," the jury recommended that petitioner be sentenced to death. See Resp.Exh. B, p. 210.

Petitioner filed a motion for a new trial on March 19, 1982, asserting nine grounds for relief. Resp.Exh. B, pp. 153-201. The motion was denied on May 17, 1982, and petitioner sentenced to death. Resp.Exh. B, p. 91. Subsequently, a warrant of execution was issued. Resp.Exh. B, pp. 86-87.

Petitioner appealed his conviction and sentence to the Supreme Court of Missouri. Resp.Exh. B, p. 81. On November 22, 1983, the Missouri Supreme Court affirmed petitioner's conviction and sentence. State v. McDonald, 661 S.W.2d 497 (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1985). Petitioner then filed a pro se motion for post-conviction relief, pursuant to Missouri Supreme Court Rule 27.26,1 on May 2, 1985. Resp.Exh. F, pp. 30-39. That motion was amended at least twice, on July 17, 1986 and October 23, 1986, with the assistance of appointed counsel. See Resp.Exh. F, pp. 23-29. The amended motion incorporates by reference petitioner's original pro se motion and the subsequent amendments.

In its amended form, petitioner's 27.26 motion contains thirty-two claims of ineffective assistance of trial counsel. See Resp.Exh. F, pp. 24-39. See Amended 27.26 Motion, Resp. Exh. F, pp. 24-39. On October 3, 1986, the Circuit Court held an evidentiary hearing with regard to the grounds asserted in petitioner's 27.26 motion (the "27.26 court"). See generally Resp.Exh. G. Ultimately, on January 20, 1987, the Circuit Court issued findings of fact and conclusions of law and denied petitioner's amended 27.26 motion. See Resp.Exh. F, pp. 12-22. Petitioner appealed the denial of his 27.26 motion. Resp.Exh. F, p. 11.2 The Missouri Court of Appeals affirmed the judgment of the Circuit Court denying petitioner relief on his 27.26 motion. McDonald v. State, 758 S.W.2d 101 (Mo.App. 1988). Motions for rehearing and for transfer to the Missouri Supreme Court were denied August 31, 1988 and October 18, 1988 respectively. Petitioner then filed the instant petition.


The facts of this case are as follows. At approximately 11:00 p.m. on May 16, 1981, the victim, Robert Jordan, and his eleven year-old daughter, Rochelle Jordan, entered the Forest Package Liquor Store, which was located at 4401 Shreve Avenue, in the City of St. Louis. As an off-duty St. Louis County police officer, the victim was required to carry a concealed firearm at all times. Resp. Exh. A-1, p. 714. That evening, the victim carried his weapon, as well as a wallet containing his police badge. Resp.Exh. A-1, p. 715. The victim and his daughter entered the store, purchased some snacks, and proceeded to leave.

At the same time, Stanley Hunter was on his way to the Forest Package Liquor Store when he passed a man, later identified as petitioner, standing to the side of the store. Resp.Exh. A-2, pp. 857-59, 863, 869-70. At approximately the same time, Archie White, who also later identified petitioner, was entering the Babysitter's Lounge, located across the street from the liquor store. Resp.Exh. A-1, pp. 726, 728, and 734-35.

As the victim left the store and walked to his car, he was accosted by petitioner. The victim's daughter testified later that from the doorway of the liquor store she saw a man, who she could not identify, approach her father. Resp.Exh. A-2, pp. 1014-15. Then Archie White and Stanley Hunter both heard a shot. Resp.Exh. A-1 & A-2, pp. 730-31, 861. They each turned to look, and they saw the victim on his knees with petitioner standing in front of him. Resp.Exh. A-1 & A-2, pp. 730-31, 862-63. The victim handed petitioner his wallet. Resp.Exh. A-1 & A-2, pp. 733, 863-64, 1015. Petitioner turned and started to walk away. Resp.Exh. A-1 & A-2, pp. 733, 866-66.

From her vantage point inside the door to the store, the victim's daughter was able to see her father's badge in the wallet as petitioner opened the wallet and turned away from the victim. Resp.Exh. A-2, p. 1016. Hunter did not see petitioner open the wallet, Resp.Exh. A-1, p. 879, but Mr. Hunter and Rochelle Jordan both testified that the petitioner turned back toward the victim and shot him through the chest, mortally wounding him. Resp.Exh. A-1 & A-2, pp. 735-37, 1017. However, the victim was able to return fire, striking petitioner three times. Resp.Exh. A-1 & A-2, pp. 737, 1017.

Petitioner was able to stagger back to his vehicle, which was occupied by Ms. Jacqueline Blue, and the two fled the scene. Eventually, Ms. Blue drove petitioner to a Veterans Administration Hospital. Resp.Exh. A-2, 2, p. 959. During the ride to the hospital, petitioner changed his shirt, discarding the blood-soaked shirt in a sewer. Resp.Exh. A-2, 2, p. 957.

Police officers responded to the Veterans Administration ("VA") Hospital, where Ms. Blue advised officers of the location of her vehicle and gave them the keys. Resp.Exh. A-2, pp. 811 & 973. Offices went to the parking lot and examined the vehicle. Through the open rear window, officers observed the victim's wallet with his badge protruding out. Resp.Exh. A-2, p. 814. An evidence team then examined the entire vehicle and recovered a jacket worn by petitioner during the commission of the crime and a gun. Resp.Exh. A-2, pp. 814. Ballistics tests failed to conclusively indicate whether the bullets which struck the victim were fired from the weapon recovered from the car parked at the VA Hospital. However, ballistics did confirm that bullet fragments recovered from the liquor store parking lot were fired from the same weapon which police officers recovered from the trunk of the vehicle. With information obtained from Ms. Blue, officers also recovered from the sewer the blood-soaked shirt petitioner had been wearing after he was shot by the victim. Resp.Exh. A-1 & A-2, pp. 771 & 975. Witnesses White and Hunter were both taken to the VA Hospital, where they identified petitioner as the man who shot Robert Jordan. Resp.Exh. A-1 & A-2, pp. 742-43, 868-71.


By order dated December 1, 1992, the Honorable Clyde S. Cahill granted petitioner's request for an evidentiary hearing on two specific issues: "(a) denial of petitioner's motion for psychiatric examination, and (b) the statutory aggravating circumstance." Petitioner then sought leave to present additional issues at the evidentiary hearing. However, subsequent to the order granting the hearing and before a ruling on petitioner's request to submit additional issues for hearing, the case was transferred to Judge Gunn. After Judge Gunn recused himself, this Court received the file, conducted a careful review, and ordered the parties to file a brief memorandum setting forth their respective positions with respect to the necessity of an evidentiary hearing.

In response to this Court's March 10, 1995 order, petitioner asserts that the principle issue requiring hearing involves the alleged "failure of trial counsel to adduce exculpatory evidence of petitioner's psychiatric disorder." Petitioner's Memorandum, filed March 27, 1995, p. 2. In contrast, respondent asserts various reasons why each of petitioner's grounds can be disposed of based on the record currently before the Court.

An evidentiary hearing on habeas petition is mandatory only if a petitioner was denied a "full and fair hearing in a state court, either at the time of the trial or in a collateral proceeding." Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). In Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), the Supreme Court clarified the appropriate standard to be applied by the district court in considering the necessity of an evidentiary hearing on a habeas petition. To be entitled to an evidentiary hearing, the Supreme Court held that the party seeking the hearing must show cause for his failure to develop...

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