Mercer v. Armontrout
| Decision Date | 30 December 1988 |
| Docket Number | No. 88-2547,88-2547 |
| Citation | 864 F.2d 1429 |
| Parties | George MERCER, Petitioner, v. William ARMONTROUT, Warden, Missouri State Penitentiary, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Douglas S. Laird, Kansas City, Mo., for appellant.
John M. Morris, Asst. Atty. Gen., Jefferson City, Mo., for appellee.
Before LAY, Chief Judge, McMILLIAN and ARNOLD, Circuit Judges.
George Mercer was convicted of capital murder in the state courts of Missouri and sentenced to death. The conviction and sentence were subsequently affirmed by the Supreme Court of Missouri, State v. Mercer, 618 S.W.2d 1 (Mo.), cert. denied, 454 U.S. 933, 102 S.Ct. 432, 70 L.Ed.2d 240 (1981), and Mercer was later denied relief in state post-conviction proceedings. Mercer v. State, 666 S.W.2d 942 (Mo.App.1984). This court affirmed the denial by the federal district court of his petition for a writ of habeas corpus. Mercer v. Armontrout, 844 F.2d 582 (8th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 249, 102 L.Ed.2d 238 (1988). Shortly after the Supreme Court of the United States denied certiorari, the Supreme Court of Missouri set October 20, 1988, at 12:01 a.m., as the new date for execution of sentence. Mercer filed a second petition for a writ of habeas corpus in the district court for the Western District of Missouri on October 13, 1988. The district court summarily dismissed this petition and denied Mercer's request for a stay of execution. Mercer v. Armontrout, 701 F.Supp. 1460 (W.D.Mo.1988). An appeal was filed in this court and a motion to stay the execution was likewise filed. The motion was assigned to the original panel members who had passed on the first habeas case. The motion to stay the execution was temporarily granted because it was presented to the panel of this court at a time when court was in session and it was impossible for the three judges to adequately review the material prior to the designated time of the execution. Mercer v. Armontrout, No. 88-2547-WM (8th Cir. Oct. 19, 1988).
Petitioner's second petition for a writ of habeas corpus raised several new issues relating to ineffective assistance of counsel. The court's preliminary concern was whether Mercer's new petition stated issues worthy of granting a certificate of probable cause. After studied analysis we have now determined that a certificate of probable cause should not issue in the present case. However, this is a capital case and the State has questioned certain procedural processes of this court in issuing our initial stay order. Accordingly, it is important to initially discuss standards concerning a federal court's review of motions to stay state warrants of execution.
Human life is our most precious possession. Our natural instincts guide us from birth to sustain life by protecting ourselves and protecting others. All notions of morality focus on the right to live and all of man's laws seek to preserve this most important right. When presented with challenges to a capital sentence, it would be easy to respond rhetorically by asking, "what about the victim whom the defendant has been found guilty of unmercifully killing." But this approach fails to reflect on the ideal that a government founded by a moral and civilized society should not act as unmercifully as the defendant is accused of acting. If the original murder cannot be justified under man's laws, it is equally unlawful and inhumane to commit the same atrocity in the name of the state. What separates the unlawful killing by man and the lawful killing by the state are the legal barriers that exist to preserve the individual's constitutional rights and protect against the unlawful execution of a death sentence. If the law is not given strict adherence, then we as a society are just as guilty of a heinous crime as the condemned felon. It should thus be readily apparent that the legal process in a civilized society must not rush to judgment and thereafter rush to execute a person found guilty of taking the life of another.
The initial point of inquiry in granting or denying a stay of execution in a death case must be whether the petition is frivolous. If the petition is not frivolous on its face, the very essence of this court's duty is to study and research the points raised. The severity and finality of the death penalty requires the utmost diligence and scrutiny of the court. In capital cases the law is uniquely complex and difficult to understand. No judge can digest, retain, or apply these principles to a voluminous state court record without reflective study and analysis. To suggest that a life or death decision can be made by simply reading a petition is to advocate dereliction of judicial duty. The penalty has already been rendered and approved by the highest court of the state in which the crime has been committed. However, as worthy as state courts may be, the state process does not always ensure constitutional process. 1 Experience has long demonstrated that human judgment rendered through judicial process is not infallible. As long as federal habeas review exists, it is the duty of federal judges to make certain that an individual does not forfeit his life at the hands of the state unless the state process lawfully rendered the punishment, it complied with federal constitutional standards, and the defendant was furnished with competent and effective representation within the norms required by the sixth amendment. Regardless of how heinous the crime, no one may reasonably question that a predicate to carrying out a death sentence is careful review of the constitutionality of the defendant's conviction and sentence.
The State is critical of our granting an emergency stay in this case. We reject this criticism because it advocates execution of a death sentence without this court's reflective study of the issues raised in this case. It is a far greater tragedy to permit an unlawful execution than to delay a state's death warrant a few weeks to ensure that an irreparable mistake does not occur.
The State urges that habeas petitioners may "abuse" the writ by filing repetitive or "successive" petitions. 2 It is often asserted that in death cases repetitive writs present motions to stay and that such procedural tactics are used to merely prolong the inevitable. Notwithstanding this possibility, "[t]he consequences of injustice--loss of liberty and sometimes loss of life--are far too great to permit the automatic application of an entire body of technical rules whose primary relevance lies in the area of civil litigation." Sanders v. United States, 373 U.S. 1, 24, 83 S.Ct. 1068, 1082, 10 L.Ed.2d 148 (1963) (Harlan, J., dissenting). Concerns for comity to a sovereign state and finality to its judgments do not outweigh the absolute need to protect against the deprivation of an individual's constitutional rights which might invalidate the capital sentence.
The apparent question is whether there exists sufficient means within the framework of the law to prevent vexatious delay resulting from state prisoners who seek to abuse the writ. In considering this question, certain preliminary factors must be taken into account. First, it must be recognized that a convicted defendant sentenced to death will attempt to assert every means available to prevent his execution. The instinctive human desire to live accounts for the proliferation of petitions for writs and stays. Nothing short of a complete bar to such petitions will prevent their continued filings.
Second, lawyers should not be faulted for their services to indigent condemned prisoners in attempting to set aside a capital sentence. Courts appoint lawyers to serve these prisoners to assure that no condemned person shall die by reason of an unconstitutional process. It is important to understand the serious nature of the voluntary service involved. The American Bar Association has initiated, and the Judicial Conference of the United States has supported, the establishment of Death Penalty Resource Centers. The purpose of these Centers is to increase the availability of competent attorneys to review the state processes and assure competent and effective representation of individuals sentenced to death. This project is inspired by the fact that competent representation is difficult to secure. The scarcity of volunteers among lawyers is understandable considering the fact that the average time that a competent lawyer labors in post-conviction review of a single death sentence is approximately one-quarter of a lawyer's billable hours for one year. These lawyers receive little or no compensation for this service.
It is essential to remember that counsel is appointed to ensure the preservation of the defendant's constitutional rights and to make certain that unlawful executions do not occur. The procedural mechanism for reviewing these petitions must strive to promote these same principles. The federal judiciary must therefore take particular care in death penalty cases to give patient and thoughtful review of claims presented by petitioners through their appointed counsel.
Once an initial petition for a writ of habeas corpus has been fully processed by a federal court, a state prisoner must comply with certain procedural prerequisites before obtaining subsequent federal review of any constitutional claims relating to his conviction or sentence. A fundamental requirement contained in these procedures is that a state prisoner must exhaust his state court remedies. Assuming a defendant has filed one state court post-conviction petition before filing a petition in federal court, the doctrine requiring exhaustion of an existing state court remedy becomes inapplicable in light of the fact that generally no state court remedy exists.
The next procedural barrier a prisoner must confront is the rule which precludes...
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