Powell v. Bowersox

Decision Date15 August 1995
Docket NumberNo. 91-1370C(8).,91-1370C(8).
Citation895 F. Supp. 1298
PartiesReginald L. POWELL, Petitioner, v. Michael S. BOWERSOX, Respondent.
CourtU.S. District Court — Eastern District of Missouri




Thomas A. Ludwig, Stephen C. Wilson, Buerkle and Beeson, Jackson, MO, for petitioner Reginald L. Powell.

Millie E. Aulbur, Stacy L. Anderson, Assistant Attorneys General, Jefferson City, MO, for defendant Paul K. Delo, Superintendent.


STOHR, District Judge.


This matter is before the Court on the petition of Missouri State prisoner Reginald L. Powell, for a writ of habeas corpus pursuant to 28 U.S.C. ž 2254. After exhausting his available state law remedies, either by fairly presenting his claims to the Missouri courts or because he is now procedurally barred from doing so, petitioner initiated this action following his conviction in the Circuit Court of the City of St. Louis on two counts of first degree murder and a sentence of death. R.S.Mo. ž 565.020. Petitioner asserts twelve grounds for relief, many of which contain several subparts. The petition was filed July 5, 1991 and assigned to the Honorable Stephen N. Limbaugh. Subsequently, on June 21, 1994, Judge Limbaugh determined that a conflict of interest had arisen, necessitating his recusal from this case. On September 6, 1994, this matter was reassigned to this Court.


Petitioner was arrested on November 26, 1986 and charged by indictment with two counts of first degree murder, two counts of robbery and one count of armed criminal action. Resp.Exh. B, pp. 362-63. On March 21, 1988, the trial commenced. After seven days of trial, the jury found petitioner guilty on Counts I and II, but could not agree on the punishment.2 Resp.Exh. B, pp. 105-06. Pursuant to R.S.Mo. ž 565.030, the trial court is empowered to assess and declare punishment if the jury is unable to agree on punishment. Accordingly, on April 11, 1988, the trial judge notified both parties that on April 15, 1988 he would enter his decision assessing punishment. On April 15, the trial judge found, by a preponderance of the evidence, that (1) the murder of each victim was "committed while the petitioner was engaged in the commission of another unlawful homicide;" (2) the murders "involved torture and/or depravity of mind and that as a result thereof it was outrageously or wantonly vile, horrible or inhumane;" and (3) the murders were "committed while petitioner was engaged in the perpetration or attempted perpetration of a robbery." Resp.Exh. B, pp. 100-01. Based on these findings, the trial court assessed and declared punishment on both Counts I and II at death. Resp.Exh. B, pp. 100-01.

Petitioner filed a motion for a new trial on April 19, 1988. That motion contains seventy-two points, with several subpoints, as alleged assignments of error. See generally Resp.Exh. B, pp. 59-99. The trial judge called petitioner's motion for a new trial for hearing, considered the motion, and, on April 29, 1988, denied the motion on its face. That same day, the trial judge formally entered a judgment against petitioner, sentencing him to death on both Counts I and II. Resp.Exh. B, p. 38. A Warrant of Execution was issued at that time. Resp.Exh. B, p. 39.

On May 10, 1988, petitioner filed his notice of appeal to the Supreme Court of Missouri. Resp.Exh. B, p. 29. Additionally, on December 1, 1988, petitioner filed a pro se motion pursuant to Missouri Supreme Court Rule 29.15.3 The Missouri Supreme Court held petitioner's appeal in abeyance, pending a ruling on his 29.15 motion. On February 21, 1989, with the assistance of appointed counsel, petitioner filed an amended 29.15 motion. The circuit court conducted a four-day evidentiary hearing, which began on April 7, 1989. On October 13, 1989, the Court denied the motion for post-conviction relief.

Petitioner then appealed the denial of his 29.15 motion. The Missouri Supreme Court consolidated petitioner's appeals, and on November 20, 1990, the Missouri Supreme Court, en banc, affirmed the judgment of conviction, the sentence of death, and the denial of post-conviction relief. State v. Powell, 798 S.W.2d 709 (Mo. banc 1990). In so doing, the Missouri Supreme Court stated that:

Many of the contentions and allegations in the pretrial motions, motion for new trial, and brief herein, ignore decisions of this Court which have repeatedly rejected the same arguments. The Court suggests that the scatter-load attacks do not comport with the rules of this Court and tend to obfuscate the ultimate issue of appellate review, namely, whether defendant received a constitutionally mandated fair trial free of reversible error.

Petitioner filed a Petition for Writ of Certiorari in the United States Supreme Court on April 30, 1991. The Supreme Court denied the petition on June 28, 1991. Petitioner then filed a pro se petition for a writ of habeas corpus in this Court on July 5, 1991. By order dated July 8, 1991, the Court stayed petitioner's execution, pending a ruling on his habeas petition. On September 6, 1991, the Court appointed petitioner counsel, and petitioner's appointed counsel filed an amended petition on August 18, 1992.


The facts of this case are as follows. On the evening of November 14, 1986, petitioner was drinking with some friends at a house located in the City of St. Louis. After a short period, petitioner and three others went to a liquor store, where they encountered Freddie Miller and his brother, Lee Miller. Petitioner asked the Miller brothers to purchase liquor for them, as petitioner and his companions were all age eighteen or younger. After some argument, the Millers refused the request.

Later that evening, still hoping to procure some liquor, petitioner and his friends went to the apartment of another friend. One of the Millers also happened to live in that apartment building. When petitioner and his friends arrived at the building, they again encountered the Millers. The Miller brothers were in the backyard talking to another person, Calvin Courtney. Both of the Miller brothers were intoxicated, one so much so that he had difficulty standing.

Petitioner and his friends again began to argue with the Millers. Eventually, a fight erupted. Because the victims were both very intoxicated, they were quite defenseless and easily fell to the ground. While the victims were on the ground, petitioner kicked and stomped on them repeatedly. Petitioner pulled down the pants and undershorts of one of the victims and began kicking him in the genitals. Petitioner's friends eventually joined in, beating the victims with bricks, boards and branches.

After the others stopped beating the victims, petitioner jumped up and down on the chests of both victims, breaking all but the top ribs of each. Petitioner and his friends then searched the victims' cloths, recovering three dollars and a pack of cigarettes. Petitioner's friends then left, leaving petitioner alone with the victims.

As the two victims lay in the backyard, still alive, petitioner stabbed each of them three times in the chest and abdomen. One of the Miller brother's sustained a wound to his hand consistent with an effort to defend himself. An autopsy revealed that both victims sustained multiple stab wounds approximately five to six inches in depth. Both victims died from internal bleeding secondary to the multiple stab wounds.

After stabbing both victims to death, petitioner rejoined his friends. He cleaned the blade of his knife by sticking it in the ground. However, he still had blood on his shoes. Petitioner boasted to his friends that he had stabbed the victims.

Petitioner was arrested the next day, after Courtney spoke to police officers. Officers read petitioner his Miranda rights, and petitioner then proceeded to make a statement: "You know, we'll say I had the last ÔÇö the last laugh."


In conjunction with the filing of his amended petition, petitioner filed a motion for an evidentiary hearing. Following the United States Supreme Court's decision in Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), the Eighth Circuit set forth the standards to apply in considering the necessity of an evidentiary hearing in the context of a habeas petition:

Now, under Keeney, in order for a petitioner to be entitled to an evidentiary hearing in federal district court, petitioner must show both cause for his failure to adequately develop the facts material to his claims in the postconviction state court hearing and actual prejudice resulting therefrom; alternatively, petitioner must show that a fundamental miscarriage of justice would result from the denial of an evidentiary hearing in federal court. Id. at 9-13, 112 S.Ct. at 1720-21. In order for us to find that a fundamental miscarriage of justice would result from denial of an evidentiary hearing in federal court, petitioner must demonstrate that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986).

McCann v. Armontrout, 973 F.2d 655, 658 (8th Cir.1992).

In his motion, petitioner asserts that an evidentiary hearing is required to (1) "determine the amount of the significant involvement" between petitioner and his appointed counsel and (2) to facilitate the introduction of the testimony of a neuropharmacologist. While the Court is cognizant of the scope of its power to hear evidence in a habeas corpus proceeding, see, e.g., Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756-57, 9 L.Ed.2d 770 (1963), especially in a capital case, see Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991-92, 49 L.Ed.2d 944 (1976), upon consideration of the petitioner's motion, and applying the most recent standards set out by the Eighth Circuit, the...

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    ... ... See e.g., Powell v. Bowersox, 895 F.Supp. 1298, 1310 (E.D.Mo.1995) (valid waiver must not only be voluntary, but must be intelligently made). Having previously ... ...
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    ... ... at 173-185, 106 S.Ct. 1758 )); Powell v. Bowersox, 895 F. Supp. 1298, 1320 (E.D. Mo. 1995) ("The fair-cross-section requirement simply does not extend to a petit jury." (citing Lockhart, ... ...
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