Moeller v. Weber
Decision Date | 22 November 2011 |
Docket Number | No. 10–2069.,10–2069. |
Citation | 649 F.3d 839 |
Parties | Donald E. MOELLER, Appellant,v.Douglas WEBER, Warden, South Dakota State Penitentiary, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
OPINION TEXT STARTS HERE
Julie Pitt, AFPD, argued, Deborah Anne Czuba, AFPD, on the brief, Little Rock, AR, for appellant.Sherri Sundem Wald, AAG, argued, Craig Martin Eichstadt, AAG, on the brief, Pierre, SD, for appellee.Before COLLOTON and BENTON, Circuit Judges, and KOPF,1 District Judge.KOPF, District Judge.
A South Dakota jury convicted Donald E. Moeller of first-degree murder and first-degree rape, and sentenced him to death. After the South Dakota Supreme Court affirmed his conviction and sentence and upheld the denial of his state habeas corpus petition, Moeller filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. The district court 2 denied Moeller's petition and we affirm.
On the evening of May 8, 1990, nine-year-old Rebecca O'Connell visited a convenience store. Later that night, O'Connell's parents reported her missing, and two men found her body the following morning in a wooded area in Lincoln County, South Dakota. An autopsy showed that O'Connell had been repeatedly raped, sustained knife wounds to multiple areas of her body, and ultimately died as a result of a cut to her jugular vein. State v. Moeller, 616 N.W.2d 424, 430 (S.D.2000) (“ Moeller I ”).
After a trial, a jury convicted Moeller of first-degree murder and first-degree rape, and sentenced him to death. The South Dakota Supreme Court reversed the conviction because prior bad acts evidence had been improperly introduced at trial. State v. Moeller, 548 N.W.2d 465, 468 (S.D.1996). The State tried Moeller a second time for the same crimes. Moeller had the same counsel during both trials.
Prior to the start of Moeller's second trial, the trial court set January 13, 1997, as the date for a Daubert hearing regarding the admissibility of DNA evidence. On August 23, 1996, Moeller's counsel requested a continuance of the hearing, which the trial court denied. On December 11, 1996, prosecutors identified the DNA evidence they planned to introduce at trial, which would be the subject of the Daubert hearing.3 Moeller's counsel again sought a continuance of the Daubert hearing, which the trial court granted. The trial court continued the Daubert hearing to March 3, 1997. On February 19, 1997, Moeller's counsel sought another continuance of the Daubert hearing, arguing that they did not have time to review the evidence and adequately prepare. The trial court denied the continuance request, finding that Moeller's counsel had nearly three months to prepare and conduct testing of the State's evidence. At the Daubert hearing, Moeller's counsel received a standing objection to the admissibility of the DNA evidence, but did not conduct meaningful cross-examination of the State's experts, and Moeller did not present his own expert. The trial court permitted the DNA evidence, including evidence related to the APO–B marker, to be introduced at trial.
The State introduced this evidence through Moses Schanfield, an expert who had also previously performed some DNA analysis for Moeller. Schanfield testified about the APO–B marker and other DNA markers. During trial, Moeller's counsel thoroughly cross-examined Schanfield, and the State's other DNA experts, about their methodology, reliability, and control procedures of their testing. The State's experts testified that, based on testing conducted on semen taken from O'Connell's body, the DNA evidence demonstrated that the probability of a person in the Caucasian population having DNA characteristics common to Moeller's would be 1 in 130 million if the APO–B marker was not included. If the APO–B marker was included, the probability would be 1 in 14.8 billion.
The State also submitted the testimony of a soil expert, John Wehrenberg, at Moeller's second trial. Wehrenberg had testified at Moeller's first trial about his analysis of soil samples found at the crime scene and soil samples found on Moeller's truck and his finding that the soil may have come from the same place. Wehrenberg also testified at Moeller's first trial that both samples contained a rare mineral, gahnite. Prior to Moeller's second trial, Wehrenberg wrote a letter indicating that gahnite was “very rare.” Moeller argued that this was an untimely, new conclusion and requested that the trial court conduct a Daubert hearing regarding the soil evidence. The trial court rejected the request, but permitted Moeller to depose the expert prior to his testimony at the second trial. During the second trial, Moeller's counsel cross-examined Wehrenberg extensively about his gahnite findings, and Moeller presented his own soil expert in response to Wehrenberg.
A jury again convicted Moeller of first-degree murder and first-degree rape. The penalty phase began one day later, with the same jury. Neither side presented evidence or called witnesses during the penalty phase. During penalty-phase deliberations, the jury sent the following question to the trial judge: “If the penalty of ‘life imprisonment without parole’ should be imposed upon the defendant, will he EVER have a chance to appear before a parole board?” The word “EVER” was in all capital letters and underlined three times. The trial judge, after consulting with the parties, answered the question as follows, The jury instructions twice referred to the jury's sentencing options as “life imprisonment without parole,” and also used the terms “life imprisonment” and “life sentence.” The verdict form included only two sentencing options: “life imprisonment without parole” and “death.” The jury returned a sentence of death.
The South Dakota Supreme Court affirmed Moeller's conviction and sentence. Moeller I, 616 N.W.2d at 430. Moeller then filed a state habeas corpus petition, which the trial court denied in its entirety, and the South Dakota Supreme Court affirmed the trial court's decision. Moeller v. Weber, 689 N.W.2d 1, 4 (S.D.2004) (“ Moeller II ”). Moeller filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in federal district court. Moeller's petition asserted numerous claims, all of which the federal district court denied. The district court granted Moeller a certificate of appealability limited to the following five issues:
A. Whether Moeller is entitled to federal habeas corpus relief based on his trial counsel's performance at the March 3, 1997, Daubert hearing and the ultimate admission of expert testimony regarding the APO–B region of the DNA evidence;
B. Whether Moeller is entitled to federal habeas corpus relief based on his trial counsel's failure to have tested the alleged gahnite which was the subject of the State's soil expert's testimony, and/or based on the trial court's failure to conduct a Daubert hearing and the subsequent admission of expert testimony regarding the alleged gahnite;
C. Whether Moeller is entitled to federal habeas corpus relief based on the trial court's response to the jury's question regarding whether Petitioner would ever have a chance to appear before a parole board;
D. Whether a pretrial screening requirement of the Due Process Clause of the Fifth Amendment requires that the aggravating circumstance upon which Moeller's death sentence was based be returned by a grand jury in an indictment or be set forth in an information under South Dakota law; and
E. Whether Moeller is entitled to federal habeas corpus relief based on the trial court having admitted evidence of Moses Schanfield's DNA testing and Schanfield's testimony at Moeller's trial.
When a state court has adjudicated a habeas petitioner's claim on the merits, we may only conduct a very limited and extremely deferential review both as to the facts and the law. See 28 U.S.C. § 2254(d). With regard to the deference owed to factual findings of a state court's decision, we are bound by those findings unless the state court made a “decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Additionally, we must presume that a factual determination made by the state court is correct, unless the petitioner “rebut[s] the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
Regarding deference owed to the application of the law under section 2254(d)(1), we may not grant a writ of habeas corpus unless the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). As explained by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), a state court acts contrary to clearly established federal law if it applies a legal rule that contradicts the Supreme Court's prior holdings or if it reaches a different result from one of that Court's cases despite confronting indistinguishable facts. Id. at 399, 120 S.Ct. 1495. Further, “it is not enough for [the court] to conclude that, in [its] independent judgment, [it] would have applied federal law differently from the state court; the state court's application must have been objectively unreasonable.” Rousan v. Roper, 436 F.3d 951, 956 (8th Cir.2006).
As the Supreme Court recently noted, “[f]or purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.’ ” Harrington v. Richter, –––U.S. ––––, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011) (quoting Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). The ...
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