Moore-El v. Luebbers
| Decision Date | 27 April 2006 |
| Docket Number | No. 05-1159.,05-1159. |
| Citation | 446 F.3d 890 |
| Parties | Sheik Mark S. MOORE-EL, Appellant, v. Al LUEBBERS, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Joseph W. Luby, argued, Kansas City, MO, for appellant.
Michael J. Spillane, AAG, argued, Jefferson City, MO, for appellee.
Before RILEY, JOHN R. GIBSON, and COLLOTON, Circuit Judges.
Sheik Mark S. Moore-El appeals from the denial of a petition for a writ of habeas corpus under 28 U.S.C. § 2254. We affirm.
Moore-El was convicted in Missouri state court of murder in the first degree, attempted robbery in the first degree, and two counts of armed criminal action. See Mo.Rev.Stat. §§ 565.020, 571.015, 564.011. The convictions arose out of the murder of Tommy Vaughn on February 17, 1993. According to the evidence produced by the prosecution at trial, Vaughn had visited the home of Patricia Holmes, apparently in an attempt either to sell jewelry or purchase cocaine, and was the victim of a staged robbery by Moore-El and his companions. A prosecution witness, Lenell Charleston, testified that Moore-El was supposed to rob Vaughn, because "[s]ometimes that's what we would do, rob folks." (T. Tr. at 559). Charleston said that Vaughn resisted Moore-El's demands, and that Moore-El shot Vaughn in the back as he attempted to flee Holmes's property. Another witness, Maurice Willis, testified that Vaughn was "begging for his life" and running away from the house shortly before Moore-El fired a gun from the front porch. (Id. at 652, 655). The home's primary resident, Holmes, testified that she saw Moore-El come to the door in dark clothing while Vaughn was inside her house, and later saw an arm wearing what looked like a dark sweater holding a gun. (Id. at 698, 701-03). A fourth witness, Demetrius Taylor, testified that he heard noises, including scuffling and "wrastling," and later heard gunshots, but did not see who fired them. (Id. at 621-23).
At trial, Moore-El disputed the State's version of events and claimed that he was not present at Holmes's house when the murder occurred. He also presented the testimony of two eyewitnesses who claimed to have responded to newspaper advertisements, placed by Moore-El's grandmother, seeking witnesses to the shooting. The witnesses described the shooter as someone other than Moore-El, and one specifically implicated Charleston. The prosecution attempted to demonstrate that these witnesses were induced to testify by promises of favors by Moore-El's grandmother. One of the witnesses acknowledged on cross-examination that after she responded to the advertisement, Moore-El's grandmother had provided her with favors, including securing the witness employment at a nursing home and posting bond for the witness's release from jail. (Id. at 977-78). The State introduced a letter written by the other witness, which stated, (T. Tr. at 1127, 1178). A jury convicted Moore-El of all counts, and Moore-El was sentenced to death.
Moore-El timely filed a motion to set aside his conviction and sentence pursuant to Missouri Supreme Court Rule 29.15, and also filed a direct appeal of his death sentence to the Supreme Court of Missouri. The court considering the Rule 29.15 motion vacated Moore-El's death sentence, but rejected his other claims. Meanwhile, the Supreme Court of Missouri transferred Moore-El's direct appeal to the Missouri Court of Appeals. Because Moore-El's death sentence had been vacated, but no new sentence had been imposed, the appellate court dismissed his appeal for lack of jurisdiction. The appellate court directed the trial court to re-sentence Moore-El. Moore-El and the State then entered into an agreement calling for a sentence of life imprisonment without parole, but allowing that if Moore-El successfully attacked his conviction, then the State could seek the death penalty in a new trial. In accord with the agreement, Moore-El was re-sentenced to life without parole.
After the re-sentencing, the state appellate court regained jurisdiction over Moore-El's consolidated appeal. That appeal raised several issues, including arguments that Moore-El's trial counsel performed inadequately by failing to discover information about other prosecutions of the witness Lenell Charleston. The Missouri Court of Appeals found none of Moore-El's arguments persuasive and affirmed the conviction in June 2000.
Moore-El then filed a second, pro se motion under Rule 29.15, again arguing that his trial counsel was ineffective. The motion court appointed counsel to represent Moore-El during this proceeding, but limited his claims to those arising from his re-sentencing and subsequent proceedings. The court dismissed all other claims as successive. Moore-El appealed this decision, arguing that he was entitled to file more than one motion pursuant to Rule 29.15, but the Missouri Court of Appeals affirmed the motion court's decision concerning successive claims.
In 2003, Moore-El filed a pro se petition for a writ of habeas corpus in the district court, and later amended the petition with the assistance of counsel. His amended petition sought relief on a variety of grounds, including multiple alleged examples of ineffective assistance of counsel. In particular, Moore-El argued that the State violated his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose inducements offered and threats made to witnesses Lenell Charleston, Patricia Holmes, Demetrius Taylor, and Maurice Willis. He also asserted that he was deprived of his Sixth Amendment right to counsel by his attorney's ineffectiveness in failing to discover and present evidence of those alleged inducements and threats. Among his other claims, Moore-El argued that his counsel was ineffective for failing to discover exculpatory testimony from potential witnesses Kim Tuppman and Sharon Watkins. A magistrate judge recommended denial of the petition, finding that the majority of Moore-El's claims were procedurally defaulted by his failure to raise them in his first appeal to the Missouri Court of Appeals. The magistrate judge found that the claims regarding Lenell Charleston were not procedurally defaulted, but recommended denial of those claims on the ground that the Missouri court had not unreasonably applied federal law.
After the magistrate judge issued her recommendation, Moore-El moved to amend his petition and add another claim that his trial counsel was ineffective for failing to interview and call as a witness a woman named Loretta Petty, or, in the alternative, that the State violated his rights under Brady by failing to disclose Petty's potentially exculpatory testimony. The district court1 considered the motion to amend along with the rest of Moore-El's claims. On December 9, 2004, the court denied relief on all claims, but granted his request for a certificate of appealability on the questions whether the State violated its duties under Brady with regard to witnesses Charleston, Holmes, Taylor, and Willis, and whether the trial counsel was ineffective for failing to call those witnesses. The district court also granted a certificate of appealability on its denial of Moore-El's motion for leave to amend. Our court expanded the certificate of appealability to include his claim that his counsel was ineffective in failing to investigate and present the testimony of Kim Tuppman and Sharon Watkins.
We turn first to Moore-El's argument that the district court erred in concluding that he had procedurally defaulted his claims that the State withheld evidence about witnesses Taylor, Willis, and Holmes, and that his counsel was ineffective in failing to call witnesses Tuppman and Watkins. In order to preserve a claim for relief, a state habeas petitioner must present that claim to the state court and allow that court an opportunity to address his claim. Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Where a petitioner fails to follow applicable state procedural rules, any claims not properly raised before the state court are procedurally defaulted. Sawyer v. Whitley, 505 U.S. 333, 338, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992); Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir. 1996) (en banc). Where a claim is defaulted, a federal habeas court will consider it only where the petitioner can establish either cause for the default and actual prejudice, or that the default will result in a fundamental miscarriage of justice. Sawyer, 505 U.S. at 338-39, 112 S.Ct. 2514.
Missouri law requires that a habeas petitioner bring any claim that a conviction violates the federal or state constitution, including a claim of ineffective assistance of counsel, in a motion for post-conviction relief under Rule 29.15. See Mo. Sup.Ct. R. 29.15(a) (); see also Schleeper v. State, 982 S.W.2d 252, 253 (Mo. 1998) (en banc). Rule 29.15 requires the movant to acknowledge that any known claims not presented in the motion are waived, see Mo. Sup.Ct. R. 29.15(d), and "successive" motions for relief are not permitted. See Mo. Sup.Ct. R. 29.15(l). A second motion for relief will be denied even if the grounds stated in the second petition are new, if the claims could have been raised in the previous motion. Pinson v. State, 784 S.W.2d 846, 847 (Mo.Ct.App.1990). This rule is designed to adjudicate all claims for relief in one proceeding. Id.
In his initial motion under Rule 29.15, Moore-El presented claims that his counsel was "ineffective in that he did not...
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