Newlon v. Armontrout, 86-4229-CV-C-5.

• Citation: 693 F. Supp. 799
• Decision Date: 02 June 1988
• Docket Number: No. 86-4229-CV-C-5.,86-4229-CV-C-5.
• Parties: Rayfield NEWLON, Petitioner, v. Bill ARMONTROUT, Respondent.
• Court: U.S. District Court — Western District of Missouri

693 F. Supp. 799

Rayfield NEWLON, Petitioner, v. Bill ARMONTROUT, Respondent.

No. 86-4229-CV-C-5.

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

June 2, 1988.

COPYRIGHT MATERIAL OMITTED

Richard Sindel, Sindel & Sindel, Clayton, Mo., for petitioner.

Stephen D. Hawke, Asst. Atty. Gen., State of Mo., Jefferson City, Mo., for respondent.

ORDER

SCOTT O. WRIGHT, Chief Judge.

This petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254 by Rayfield Newlon, an inmate in custody at the Missouri State Penitentiary. The petitioner seeks to vacate the sentence of death imposed on him after a jury trial in the Circuit Court of St. Louis County, Missouri in August, 1979.

Petitioner's conviction was affirmed on direct appeal by the Missouri Supreme Court in State v. Newlon, 627 S.W.2d 606 (Mo.1982), cert. denied, 459 U.S. 884, 103 S.Ct. 185, 74 L.Ed.2d 149 (1982). Petitioner then filed a motion to vacate the sentence pursuant to Missouri Supreme Court Rule 27.26. The motion was denied. The Missouri Court of Appeals affirmed the denial and denied a request for a rehearing or transfer to the Missouri Supreme Court. Newlon v. State, 705 S.W.2d 590 (Mo.Ct. App. 1986).

The petition for habeas relief contains four claims:

(1) The petitioner was denied due process of law due to the prosecutor's improper argument in the penalty phase of the trial, which was not only inflammatory and prejudicial, but also diminished the jury's sense of responsibility in imposing the death penalty;

(2) The petitioner was denied his right to effective assistance of counsel during the penalty phase of the trial;

(3) The trial court unconstitutionally limited the factors the jury could consider in mitigation of the death penalty; and

(4) Missouri's "depravity of mind" instruction on aggravating circumstances is unconstitutionally vague.

The petitioner does not attack the guilty verdict or proceedings in the guilt phase of the trial, but challenges the imposition of the death penalty in this case on the basis of these four claims.

I. Background

Petitioner was charged with capital murder under Mo.Rev.Stat. Section 565.001, "in that defendant, acting with others, feloniously, unlawfully, willfully, knowingly and deliberately and with premeditation, killed Mansfield Dave," the proprietor of a small confectionary in Kinloch, Missouri. At the time, petitioner was a 23-year-old black male with an 11th grade education. He had previous convictions involving burglary, larceny and stealing. He had served time in the penitentiary.

The evidence connecting defendant with the crime consisted of the testimony of a participant, Walter West, and statements by petitioner to police while in custody. Petitioner's statements were conflicting. In an initial statement to the police, he admitted helping West and Franz Williams, a third participant, saw off a shotgun and go to the store intending to rob it. However, he contended that he had stayed in the car while West and Williams went inside the store. Williams, whose fingerprints were identified on a soda bottle left on the check-out counter of the confectionary where Dave was shot, was not called as a witness although he had been arrested, confined, and charged with capital murder.

Petitioner later made a videotaped statement where he admitted that he had entered the store with Williams but that Williams had done the shooting while petitioner was in the rear of the store. In this statement he also asserted that, before entering the store, Williams had expressed the possibility that he "might have to shoot" Mr. Dave because he knew him.

In his testimony at trial, petitioner denied being present at the scene and denied killing Mr. Dave. Walter West testified that Williams came from the back of the store just as petitioner was at the counter "messing with the shotgun." When Mr. Dave turned around, there were two consecutive "puffs of smoke," and then Williams and petitioner fled from the store. West stated that he observed this from his vantage point sitting in his automobile on the opposite side of the street from the store. West quoted petitioner as reporting to him later that "I had to burn him."

The robbery plan failed, as no money was taken from the store. However, Mr. Dave suffered two gunshot wounds and died. Mrs. Dave testified that she ran toward the store when she heard an alarm and saw Williams, noting that he was not carrying anything. This statement apparently corroborated West's testimony that petitioner, not Williams, did the shooting. The shotgun was delivered to the police by West's cousin.¹ The jury found petitioner guilty of capital murder. No additional evidence was presented at the punishment phase of the trial.

II. Standard of Review

The standard of review for habeas corpus petitions by prisoners in state custody is set out in 28 U.S.C. § 2254(d). A written determination after a hearing on the merits of a factual issue, made by a state trial or appellate court of competent jurisdiction, is presumed to be correct unless one of the conditions set forth in § 2254(d)(1)-(7) is found to exist. If none of these conditions is found, or unless the state court determination is "not fairly supported by the record," 28 U.S.C. § 2254(d)(8), the petitioner must establish by convincing evidence that the factual determination by the state court was erroneous. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).

This presumption of correctness does not apply to legal findings or to mixed questions of law and fact. Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 1306, 71 L.Ed. 2d 480 (1982). Factual issues involve "what are termed basic, primary, or historical facts: facts `in the sense of a recital of external events and the credibility of their narrators....'" Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Mixed questions of law and fact, however, involve "the application of legal principles to the historical facts of the case." Cuyler v. Sullivan, 446 U.S. 335, at 342, 100 S.Ct. 1708, at 1714, 64 L.Ed.2d 333 (1980). As Justice Frankfurter once stated: "Where the ascertainment of the historical facts does not dispose of the claim but calls for interpretation of the legal significance of such facts ... the District Judge must exercise his own judgment on this blend of facts and their legal values. Thus, so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge." Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1953). Cf., Sumner, 102 S.Ct. at 1306.

III. Exhaustion

Under 28 U.S.C. § 2254(b), exhaustion of state remedies is a prerequisite to the filing of a petition for a writ of habeas corpus. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The purpose of this requirement is to further the principles of comity by permitting state courts to have "the first opportunity to hear the claim(s) sought to be vindicated." Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 620, 88 L.Ed.2d 598 (1986); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971).

"To exhaust his state remedies, a habeas petitioner only needs to have `fairly presented' to the state courts the `substance' of his federal habeas corpus claims." Little v. Armontrout, 819 F.2d 1425, 1428 (8th Cir.1987). Where each of the claims in the petition were either "expressly raised by the petitioner in state court proceedings or discussed by the state courts," then the state courts have been provided with a "fair opportunity" to rule upon all claims presented in the habeas petition. Id.

Here, the petitioner raised and the state courts have discussed each of the petitioner's four claims. Petitioner's "Second Amended Petition Under Supreme Court Rule 27.26," at 4-5, filed Feb. 10, 1984, clearly presents his constitutional claim that he was denied due process and Eighth Amendment protections due to the prosecuting attorney's improper argument in the penalty phase of the trial. See also supporting "memorandum of law" to Second Amended 27.26 Petition, at 22-32. In affirming the denial of this motion, the Missouri Court of Appeals for the Eastern District expressly stated: "The prosecutor's argument did not deprive movant of a fundamentally fair trial." Newlon v. State, 705 S.W.2d at 592. (emphasis supplied).

The state courts also expressly considered plaintiff's constitutional claim of ineffective assistance of counsel at the penalty phase of the trial. In Newlon, 705 S.W.2d at 595, the Court of Appeals expressly cited the relevant federal constitutional case, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in addition to Seales v. State, 580 S.W.2d 733, 736 (Mo.1979), which held that the courts of Missouri apply the same standards as the federal courts in the Eighth Circuit for determining the effectiveness of counsel.

The State Appellate Court discussed petitioner's claim that the trial court's instruction No. 21 limited the jury's consideration of mitigating factors when deliberating on the death penalty. Newlon, 705 S.W.2d at 593. Although the Court noted initially that it does not ordinarily review instructional error under Rule 27.26, it in fact did address the merits, and quoted the United States Supreme Court in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the leading case on this issue.

Finally, petitioner's fourth claim was expressly considered and rejected by the Missouri Supreme Court on direct appeal. State v. Newlon, 627 S.W.2d at 621. Here, petitioner alleges that the phrase "depravity of mind" in the aggravating circumstances listed in Mo.Rev.Stat. § 565.012.2(7) is unconstitutionally vague and violative of the due process clause of the Fourteenth Amendment. The Missouri Supreme Court examined the claim and based its discussion on Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, ...