Middleton v. Roper, 06-2907.

Citation498 F.3d 812
Decision Date17 August 2007
Docket NumberNo. 06-2907.,06-2907.
PartiesJohn MIDDLETON, Appellant, v. Don ROPER, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Cheryl Ann Pilate, argued, Charles Rogers, on the brief, Kansas City, MO, for appellant.

Michael Joseph Spillane, AAG, argued, Jefferson City, MO, for appellee.

Before LOKEN, Chief Judge, ARNOLD and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

John Middleton was convicted of the first-degree murder of Alfred Pinegar and sentenced to death by a Missouri trial court. The Supreme Court of Missouri affirmed the conviction and sentence on direct appeal, State v. Middleton, 995 S.W.2d 443 (Mo.1999) ("Middleton I"), and subsequently affirmed the denial of his motion for post-conviction relief. Middleton v. State, 103 S.W.3d 726 (Mo.2003) (Middleton II). Middleton applied for a writ of habeas corpus in federal court under 28 U.S.C. § 2254. The district court1 denied relief on all thirty-two grounds claimed, but granted a certification of appealability on four issues. We affirm.

I.

We recite the facts as set forth by the Supreme Court of Missouri in its opinion affirming the denial of post-conviction relief. See 28 U.S.C. § 2254(e). On June 10, 1995, police arrested several individuals in Harrison County, Missouri, on methamphetamine-related charges. John Middleton a local methamphetamine user and dealer, was not arrested at that time. About ten days later, he told a friend that "the snitches around here are going to start going down." He said he had a "hit list," which included Alfred Pinegar, another methamphetamine dealer and an associate of Middleton's. Two days after making these comments, Middleton told the same friend that he was "on his way to Ridgeway, Missouri, to take Alfred Pinegar fishing."

Pinegar lived with his fiancée, Priscilla Hobbs, in Davis City, Iowa, just north of Harrison County. On June 23, 1995, Hobbs passed Middleton on the road on her way to Davis City. Middleton and his girlfriend were in a white Chevrolet pickup truck. When Hobbs arrived at home, Pinegar was gone, and the yard had been only partly mowed. Also missing were about $200 and a twelve-gauge shotgun that Pinegar habitually carried.

Around noon of that day, Middleton entered a Wal-Mart in Bethany, Missouri, with his girlfriend, Maggie Hodges, and a man believed to be Pinegar. They approached the sporting goods department where Middleton purchased six boxes of nine-millimeter ammunition and two boxes of twelve-gauge buckshot.

After leaving Wal-Mart, the three drove several miles to the vicinity of Ridgeway, where they parked in a field. When Middleton brandished Pinegar's shotgun, Pinegar fled. Middleton shot him twice in the back and then killed him with a shot to the face. Middleton dumped Pinegar's body over a fence.

Middleton and Hodges then returned to the Bethany Wal-Mart, where Middleton exchanged the nine-millimeter rounds for ammunition of another caliber. Later in the afternoon, Gerald Parkhurst saw Middleton and Hodges standing beside their pickup on a road near Bethany. Explaining that the truck had broken down, Middleton and Hodges asked for a ride. Parkhurst agreed. The couple took five or six guns, including the shotgun, out of the pickup truck and placed them in Parkhurst's car. Parkhurst drove them to Spickard, Missouri, where they took the guns and left.

On June 25, 1995, John Thomas visited Middleton to discuss possible drug informants. Middleton said that "something had to be done about them." He told Thomas that he had Pinegar's shotgun and that Pinegar "wouldn't be needing it no more." The following day, Pinegar's body was discovered. Police also found at the crime scene a piece of leather fringe, an empty box of twelve-gauge shells, a pair of sunglasses with a missing lens, and a small plastic clock.

Several months later, while in jail, Middleton admitted to a fellow inmate that he killed Pinegar out of fear that Pinegar would "snitch" on him. Middleton described the murder to the other inmate, and said he was worried that he may have left some fringe from his leather jacket at the scene.

Middleton was tried and convicted of the first-degree murder of Pinegar. He presented no evidence in his defense in the guilt phase of the trial. In the punishment phase, the State presented evidence that he had subsequently murdered one Randy Hamilton and his girlfriend, Stacey Hodge, as part of his effort to eliminate informants. The jury recommended a death sentence, and the circuit court imposed it. Later, in a separate trial, Middleton was also sentenced to death for the other two murders. See Middleton v. Roper, 455 F.3d 838 (8th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 980, 166 L.Ed.2d 743 (2007).

II.

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), a federal court may grant a writ of habeas corpus only if the state court's determination:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

"A decision is `contrary to' federal law . . . if a state court has arrived `at a conclusion opposite to that reached by [the Supreme Court] on a question of law' or if it `confront[ed] facts that are materially indistinguishable from a relevant Supreme Court precedent' but arrived at an opposite result." Davis v. Norris, 423 F.3d 868, 874 (8th Cir.2005) (quoting Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). "A state court unreasonably applies clearly established federal law when it `identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Id. (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495). The factual findings of the state courts are presumed correct, and the applicant has the burden to rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

A.

Middleton first claims that he was denied his right to effective assistance of counsel and to due process of law when the state trial court refused to grant his requests for a continuance of the trial. Middleton complains that the State endorsed twenty-three new witnesses only three weeks prior to trial, and that as a result, his counsel were unable adequately to prepare his defense. He contends that counsel were forced to conduct depositions in the evening during the trial instead of readying themselves for the following day's cross examinations, and that their effectiveness at trial suffered as a consequence.

By the time Middleton went to trial, about a year and four months had elapsed since an information was filed against him. His first counsel entered her appearance the day after the information was filed. In June 1996, eight months after the information was filed, his counsel requested and received a continuance from October 7, 1996, to February 24, 1997. Two more attorneys joined Middleton's team in the summer or early fall of 1996. Middleton moved for a continuance several times during the final three weeks before trial, but the trial court adhered to the scheduled trial date in February 1997.

Middleton's first request for a continuance, made three weeks before the February trial date, argued that counsel were unable to complete their preparation due to the unexpected length of depositions, the need to defend against accusations of two additional murders in the penalty phase, the recent discovery of additional reports and evidence, and the fact that some of the witnesses were difficult to locate. The trial court denied the motion, saying that "this is the kind of case that never would be ready for trial," because "there are always other witnesses to find or discovery or some new facet that comes up or something." (T. Tr. 615). The court also reasoned that it was required to recognize the speedy trial rights of the defendant, who had been in confinement for an extended period of time. After the State endorsed its new witnesses, the trial court found that the defense would not be prejudiced by the endorsement and denied a second motion to continue, but granted Middleton leave to object to the presentation of the witnesses if unforeseen discovery problems arose. In a third motion to continue that was filed five days before trial, Middleton's lawyers argued that they were still not prepared to go to trial, citing a potential conflict of interest over the representation of a prosecution witness, the asserted unavailability of their own recently-endorsed penalty phase expert witness, continuing efforts to obtain discovery materials and other information from the State, and the need to have certain fiber evidence analyzed. The court denied the motion saying that "even if we continued it for six months, right before trial there are always those crises and problems and things that arise, and no matter how you went, six months or a year, you would have problems of that kind and that nature." (T. Tr. 758). The court concluded that "the case is in the stage that it can be tried with fairness to Mr. Middleton," but pledged to consider "additional protections" if Middleton raised "particular instances where relief is required from the Court" to ensure a fair trial. (Id.).

At trial, the State eventually called eleven of the twenty-three late-endorsed witnesses to testify. Middleton did not renew an objection to several of these witnesses, and others testified only briefly regarding perfunctory matters, such as the chain of custody of physical evidence. The court eventually granted Middleton's motion to exclude the testimony of the witness with the asserted conflict of interest. The...

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