Mercer v. Armontrout

• Decision Date: 18 October 1988
• Docket Number: No. 88-1019-CV-W-5.,88-1019-CV-W-5.
• Citation: 701 F. Supp. 1460
• Parties: George MERCER, Petitioner, v. William ARMONTROUT, Respondent.
• Court: U.S. District Court — Western District of Missouri

701 F. Supp. 1460

George MERCER, Petitioner, v. William ARMONTROUT, Respondent.

No. 88-1019-CV-W-5.

United States District Court, W.D. Missouri, W.D.

October 18, 1988.

Douglas Laird, Polsinell, White, Vardeman & Shalton, Kansas City, Mo., for petitioner.

John M. Morris, III, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

ORDER

SCOTT O. WRIGHT, Chief Judge.

Pending before the Court is Petitioner George Mercer's motion for stay of execution, presently scheduled for October 20, 1988, at 12:01 a.m., for the purpose of adjudicating three alleged Constitutional violations raised in his second petition for Writ of Habeas Corpus. After review of the motion and memorandum in support of said motion and the Missouri Attorney General's response thereto, the Court grants Petitioner's motion for leave to file an amended petition; denies Petitioner's motion for production of photographs and other physical evidence as moot; denies Petitioner's motion for stay of execution; and summarily dismisses Petitioner's Petition for Writ of Habeas Corpus.

Background

Petitioner George Mercer is currently confined in the Missouri State Penitentiary pursuant to a conviction for capital murder and sentence of death after trial in the Circuit Court of Greene County, Missouri, on September 15, 1979.

Following the conviction, an automatic appeal to the Missouri Supreme Court was taken. The conviction and sentence were affirmed. State of Missouri v. Mercer, 618 S.W.2d 1 (Mo.1981) (en banc). Petition for Writ of Certiorari to the United States Supreme Court was denied. Mercer v. Missouri, 454 U.S. 933, 102 S.Ct. 432, 70 L.Ed. 2d 240 (1981). Following this denial, the Missouri Supreme Court issued a warrant for execution. This Court issued a stay of execution and retained jurisdiction pending disposition of Petitioner's state post-conviction proceedings pursuant to Missouri Supreme Court Rule 27.26. The post-conviction remedy was denied by the trial court and was affirmed on appeal. Mercer v. State, 666 S.W.2d 942 (Mo.Ct.App.1984).

Following exhaustion of his state court remedies, this Court considered and denied Petitioner's first request for habeas relief in Mercer v. Armontrout, 643 F.Supp. 1021 (W.D.Mo.1986). This denial was affirmed on appeal. Mercer v. Armontrout, 844 F.2d 582 (8th Cir.1988), cert. denied 454 U.S. 933, 102 S.Ct. 432, 70 L.Ed.2d 240 (1988).

Petitioner filed the instant petition and motion for stay of execution on October 13, 1988, requesting a stay of his imminent execution for the purpose of resolving three alleged Constitutional violations in his second amended petition for habeas corpus. The abominable facts of this case are well-documented and need not be repeated again for purposes of this review.

Analysis

Petitioner raises three challenges to his conviction and sentence. First, Petitioner asserts that his Sixth and Fourteenth Amendment rights to effective assistance of counsel have been undermined in numerous respects by counsel at trial. Second, Petitioner alleges the aggravating circumstances instruction presented to the jury at trial was unconstitutionally vague in violation of the Eighth Amendment. Finally, Petitioner claims he was denied access to exculpatory and mitigating evidence of the victim's involvement in the illegal use and sale of controlled substances by the prosecution in violation of his Constitutional rights, and said denial materially prejudiced the Petitioner in the presentation of his defense. Respondent has vehemently opposed this petition on numerous grounds.

The issue before the Court today is whether a stay of execution should be granted in order to review any or all of the claims presented in Petitioner's Second Amended Petition for Habeas Corpus. A second or successive petition for habeas may be the basis for a stay of execution only in the "presence of substantial grounds upon which relief might be granted." Barefoot v. Estelle, 463 U.S. 880, 895, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983). The Court has reviewed the allegations by Petitioner in light of the above standard, and finds no "substantial grounds" upon which relief might be granted.

I. Prosecution Withheld Mitigating Evidence

Petitioner has alleged that prior to his trial for capital murder, the prosecution withheld evidence that the victim had engaged in the illegal use and sale of drugs. The Petitioner alleges this evidence was exculpatory and/or mitigating in nature and, accordingly, its unavailability materially prejudiced the Petitioner in the presentation of his defense.

The Respondent contends this claim is an abuse of the writ because it was not raised in Petitioner's First Petition for a Writ of Habeas Corpus, and that it is procedurally barred because it was not raised in state post-conviction Rule 27.26 proceedings.

A. Abuse of the Writ

Title 28 U.S.C. § 2244(b) addresses the finality of previous habeas proceedings:

When after an evidentiary hearing on the merits of a material factual issue, or after a hearing on the merits of an issue of law, a person in custody pursuant to the judgment of a state court has been denied by a court of the United States.... release from custody or other remedy on an application for a writ of habeas corpus, a subsequent application for a writ of habeas corpus in behalf of such person need not be entertained by a court of the United States unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the court, and unless the court ..., is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ.

28 U.S.C. § 2244(b) (1971). See also 28 U.S.C. § 2254 Rule 9(b).

The above passage has been interpreted so as to preclude new claims in a petition for habeas corpus when the petitioner is guilty of inexcusable neglect or the intentional withholding of claims. Nell v. James, 811 F.2d 100, 104 (2nd Cir.1987). However, summary dismissal of a petition under these circumstances is not automatic. "Once the government has raised the issue or it has been raised sua sponte, the burden shifts to the petitioner to show why he has not abused the writ." Miller v. Solem, 758 F.2d 144, 145 (8th Cir.1985) (citations omitted). The petitioner must be made aware that abuse of the writ is being contemplated as a ground for summary dismissal and he must be given a reasonable opportunity to prove he has not abused the writ. Id.

The Court believes Petitioner has met his burden here. Petitioner claims evidence was withheld by the prosecution that would have benefitted him at trial. Further, Petitioner alleges that the facts comprising this alleged Constitutional violation were not known to him at the time he filed his first petition. These allegations are not contested by Respondent. "The writ is not abused ... when a habeas petitioner is excused for lack of knowledge of the facts...." Nell, 811 F.2d at 105 (citing Vaughan v. Estelle, 671 F.2d 152, 153 (5th Cir.1982)). There is no abuse of the writ.

B. Procedural Default

Respondent further contends this claim should be dismissed because it was not raised in state proceedings and is now procedurally barred there, thus precluding federal review. Respondent contends that the failure of Petitioner's Rule 27.26 counsel to raise this Constitutional violation created a procedural bar to federal habeas corpus review of this issue. The Court agrees. See Benson v. State, 611 S.W.2d 538, 541 (Mo.Ct.App.1980) (Missouri procedure requires constitutional claim to be presented "at each step of the judicial process"). See also Stokes v. Armontrout, 851 F.2d 1085, 1092 (8th Cir.1988); Walker v. Lockhart, 852 F.2d 379, 381 (8th Cir.1988); Thomas v. Auger, 738 F.2d 936, 938-39 (8th Cir.1984).

Nor is Petitioner's contention that he still has available collateral state proceedings pursuant to Rule 27.26 persuasive. In light of the recent enactment of Missouri Supreme Court Rule 29.15, it appears Missouri has chosen to preclude those petitioners sentenced prior to January 1, 1988 who have completed a previous 27.26 motion from filing a new Missouri post-conviction remedy procedure. Granted, this conclusion is not expressly outlined in the statute. However, the Court finds Chief Judge Nangle's thoughtful resolution of this issue persuasive, and adopts it as its own. See Byrd v. Armontrout, 686 F.Supp. 743, 753 (E.D.Mo.1988). Accordingly, Mercer is procedurally barred from raising those issues in state collateral proceedings.

To overcome this bar, Mercer must demonstrate both cause for his procedural default and actual prejudice. See Amadeo v. Zant, ___ U.S. ___, 108 S.Ct. 1771, 1776, 100 L.Ed.2d 249 (1988); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). The Court believes Mercer's petition satisfies the "cause" prong of the above test for the same reason there is no "abuse of the writ" problem with this issue—he asserts he did not know of the alleged violation. Cause may be established for a procedural default where an objective impediment made compliance with a procedural rule impossible, as where the factual basis for a claim was not reasonably available to counsel. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2646, 91 L.Ed.2d 397 (1986).

Nevertheless, the Court can discern no real prejudice to Mercer from the alleged violation. Mercer "must shoulder the burden of showing, not merely that the errors at his trial created the possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of Constitutional dimensions." United States v. Fradey, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed. 2d 816 (1982).

Mercer alleges this evidence of the victim's drug use and sale would have been relevant to several issues at trial. First, Petitioner alleges that since no conclusive cause of death...