Nicklasson v. Roper

• Decision Date: 21 June 2007
• Docket Number: No. 05-3318.,05-3318.
• Citation: 491 F.3d 830
• Parties: Allen L. NICKLASSON, Appellant, v. Don ROPER, Warden, Potosi Correctional Center, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

491 F.3d 830

Allen L. NICKLASSON, Appellant, v. Don ROPER, Warden, Potosi Correctional Center, Appellee.

No. 05-3318.

United States Court of Appeals, Eighth Circuit.

Submitted: January 10, 2007.

Filed: June 21, 2007.

Counsel who presented argument on behalf of the appellant was Jennifer Herndon of Florissant, MO. Also appearing on the brief was S. Paige Canfield of St. Louis, MO.

Counsel who presented argument on behalf of the appellee was Stephen D. Hawke, AAG, of Jefferson City, MO.

Before WOLLMAN, BEAM, and MELLOY, Circuit Judges.

WOLLMAN, Circuit Judge.

Allen Nicklasson was found guilty by a jury in a Missouri state court of first-degree murder and was sentenced to death. He appeals from the district court's¹ judgment denying his petition for a writ of habeas corpus. We affirm.

I.

For a complete recitation of the facts giving rise to this case, see State v. Nicklasson, 967 S.W.2d 596 (Mo.1998). The facts relevant to this appeal are as follows. On August 23, 1994, Allen Nicklasson, Dennis Skillicorn, and Tim DeGaffenreid decided to return to Kansas City after a trip east to obtain drugs. Their vehicle broke down a number of times along I-70. After one such breakdown, they burglarized a home and stole four guns, ammunition, a skinning knife, money, a pillow case, some change, and a cracker box. They stashed the stolen property in the bushes, called a tow truck, and used the change-filled cracker box to pay a mechanic to restart the car. Once the car was restarted, they returned to recover the stolen property, at which point the car broke down once again.

Richard Drummond saw the three stranded men and offered to take them to a telephone. Accepting the offer, they transferred the stolen property from their car to the trunk of Drummond's vehicle, keeping a .22 caliber handgun and a shot-gun with them when they entered Drummond's vehicle. Nicklasson then sat behind Drummond, pressed the pistol against the back of Drummond's head, and said, "[y]ou're going to take us to where we want to go." As they proceeded towards Kansas City, the three decided to kill Drummond and they had him drive to a secluded area off a county road. After ordering Drummond to stop and exit the car, Nicklasson walked him into the woods, ordered him to kneel, told him to say his prayers, and shot him in the head twice. Drummond's body was found eight days later. Nicklasson and Skillicorn were later arrested while hitchhiking in California.²

Following the imposition of his sentence, Nicklasson appealed his conviction to the Supreme Court of Missouri, arguing, inter alia, that the trial court had erred by (1) conducting a confusing and inadequate death qualification voir dire without defense participation, (2) prohibiting the defense from conducting follow-up voir dire after asking the jury about their ability to follow Missouri's diminished capacity instruction, (3) barring any voir dire of jurors concerning their potential reaction to the introduction of evidence of Nicklasson's involvement in two other Good Samaritan murders, and (4) finding that the prosecution did not commit a racially-motivated Batson violation for striking two black jurors. A divided court held that the voir dire was constitutionally sufficient and found no error in the trial court's determination that the jury strikes were for legitimate reasons. Nicklasson, 967 S.W.2d at 609-14. Nicklasson's motion for post-conviction relief was also denied. Nicklasson v. State, 105 S.W.3d 482 (Mo. 2003). He then petitioned for a writ of habeas corpus in federal district court. Following the district court's denial of the petition, we granted a certificate of appealability on the above-mentioned issues.

II. The AEDPA Standard

Pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA), we may not grant a writ of habeas corpus with respect to any issue decided by the Missouri state courts unless the decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or "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). AEDPA limits the scope of federal review "in order to effect the intent of Congress to expedite habeas proceedings with appropriate deference to state court determinations." Whitmore v. Kemna, 213 F.3d 431, 433 (8th Cir.2000) (citing Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). AEDPA "places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams, 529 U.S. at 412, 120 S.Ct. 1495.

A state court decision is "contrary to" clearly established federal law if it reaches a conclusion opposite to one reached by the Supreme Court on a question of law or decides the case differently than the Supreme Court has decided a case with a materially indistinguishable set of facts. Id. at 405, 120 S.Ct. 1495. A state court decision involves an "unreasonable application" of clearly established federal law if, in the federal court's independent judgment "the relevant state-court decision [not only] applied clearly established federal law erroneously or incorrectly[, but also did so] . . . unreasonabl[y]." Id. at 410-11, 120 S.Ct. 1495. AEDPA requires federal courts to presume that state court factual findings are correct, and it places the burden on Nicklasson to rebut that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

III. Death Qualification Voir Dire

1. Trial Court's Procedure

At the beginning of voir dire, the trial court made introductory remarks. It recounted, inter alia, a jury instruction concerning the elements of first-degree murder; it described the general decision-making process necessary to determine whether, if guilty, Nicklasson would receive a death or life imprisonment sentence; it discussed the role of mitigating and aggravating circumstances in the process; and it concluded by explaining the state's burden of proof.

Following this introduction, the trial court asked potential jurors whether they could both follow the court's instructions and (1) decide if the defendant was guilty or not guilty of murder in the first degree or of a lesser degree of homicide, (2) consider evidence of aggravating circumstances, (3) consider evidence of mitigating circumstances, (4) decide if the mitigating circumstances outweigh the aggravating circumstances, (5) unanimously decide with the other jurors that the aggravating circumstances outweigh the mitigating circumstances, (6) consider the imposition of the death penalty, and (7) consider the imposition of life without probation or parole.

With respect to death qualification, the court asked three additional questions of the venire panel: (1) whether they would automatically vote for the death penalty, (2) whether they would automatically vote for life without probation or parole, and (3) whether they would be able to follow the court's instructions and consider both the imposition of the death penalty or the imposition of life without probation or parole.

Sixteen venirepersons responded that they would both automatically impose the death penalty and would automatically impose life imprisonment if they convicted the defendant of first-degree murder. Despite this contradiction, the court refused to ask additional death qualification questions or allow counsel to do so.

2. Analysis

A. The Sufficiency of the Death Penalty Voir Dire

Nicklasson's case is not materially indistinguishable from any decided by the Supreme Court. Nicklasson therefore argues that the issues presented represent an unreasonable application of clearly established federal law set forth in Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), Rosales-Lopez v. United States, 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981) (plurality opinion), and Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Nicklasson, 967 S.W.2d at 610.

i. The Clearly Established Federal Law

The Supreme Court has indicated that the Constitution demands that the defendant be afforded an impartial jury. Morgan, 504 U.S. at 729-30, 112 S.Ct. 2222. "[P]art of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors." Morgan, 504 U.S. at 729, 112 S.Ct. 2222 (citing Dennis v. United States, 339 U.S. 162, 171-72, 70 S.Ct. 519, 94 L.Ed. 734 (1950)). Without an adequate voir dire, a trial judge's responsibility to "remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled . . . [and] the defendant's right to exercise peremptory challenges where provided by statute or rule [is impaired]...." Rosales-Lopez, 451 U.S. at 188, 101 S.Ct. 1629 (citations omitted).

The conduct of voir dire is generally left to the trial court's sound discretion, Morgan, 504 U.S. at 729, 112 S.Ct. 2222. Indeed, "the trial judge retains discretion as to the form and number of questions on the subject. . . ." Turner v. Murray, 476 U.S. 28, 37, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986) (plurality opinion) (citing Ham v. South Carolina, 409 U.S. 524, 527, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973)). Whether a trial court is constitutionally compelled to ask certain questions or has unduly restricted questioning by counsel is dictated by the essential demands of fairness. Morgan, 504 U.S. at 730, 112 S.Ct. 2222 (citing Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 75 L.Ed. 1054 (1931)). Indeed, "[t]o be constitutionally compelled . . . it is not enough that such questions might be helpful. Rather, the trial court's failure to ask these questions must render the defendant's trial fundamentally unfair." Id. at 730 n. 5, 112 S.Ct. 2222 (second alteration in...