Preston v. Delo

• Decision Date: 10 September 1996
• Docket Number: No. 95-3652,95-3652
• Citation: 100 F.3d 596
• Parties: Elroy PRESTON, Appellant, v. Paul K. DELO, Warden, Appellee. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 596

100 F.3d 596

Elroy PRESTON, Appellant, v. Paul K. DELO, Warden, Appellee.

No. 95-3652

United States Court of Appeals Eighth Circuit

Submitted: September 10, 1996

Decided: November 14, 1996

Rehearing and Suggestion for Rehearing En Banc Denied January 29, 1997^*

Appeal from the United States District Court for the Eastern District of Missouri.

Janis C. Good, St. Louis, MO, argued, for appellant.

Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, MO, argued, for appellee.

Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and HANSEN, Circuit Judge.

WOLLMAN, Circuit Judge.

Elroy Preston, a Missouri inmate sentenced to death, appeals from the district court's ¹ denial of his 28 U.S.C. Section(s) 2254 petition. We affirm.

I.

After a day of drinking and arguing at the home of Ervin Preston on September 20, 1980, Willie "Pee Wee" Richardson and Betty Klein went upstairs to bed, while Ervin, his brother Elroy Preston, and Elroy's girlfriend, Sherry Brown, remained downstairs. In the early morning hours of September 21, Elroy Preston went upstairs and ordered Richardson and Klein to go back downstairs. When they were downstairs, Preston announced that he would kill Richardson and Klein after he removed his clothes. After Preston undressed, he stabbed Richardson several times, killed Klein with a single stab wound to the neck (severing her spinal cord), then returned to the still-living Richardson and stabbed him several more times. When his victims were dead, Preston took some fried chicken, dipped it in their blood, and ate it while taunting the victims. Preston then dragged the bodies into an alley and attempted to clean up the house.

Preston was convicted of the capital murder of Richardson and the second-degree murder of Klein. His convictions were affirmed on direct appeal, see State v. Preston, 673 S.W.2d 1 (Mo.), cert. denied, 469 U.S. 893 (1984), and the denial of his motion for post-conviction relief was also affirmed on appeal. See Preston v. State, 736 S.W.2d 53 (Mo. Ct. App. 1987), cert. denied, 484 U.S. 1020 (1988). The Missouri Supreme Court subsequently denied Preston's petition for a writ of habeas corpus and his motion to recall the mandate. State ex rel. Preston v. Delo, No. 75519 (Mo. 1993) (unpublished) (habeas petition); State v. Preston, No. 64186 (Mo. 1993) (unpublished) (motion to recall the mandate). ² Preston alleged more than 250 grounds for relief in his section 2254 petition filed in the district court. The district court concluded that the vast majority of Preston's claims were procedurally barred and rejected his remaining claims on their merits.

II.

Preston's primary argument on appeal is that the district court erroneously ruled that his Brady³ claim was procedurally barred.⁴ Preston contends that the prosecutor prevented him from reviewing and presenting Ervin Preston's medical records at trial. These records show that Ervin was treated in 1974 for severe alcoholism and suggest that he suffered from auditory hallucinations, blackouts, and memory problems. The records were in court on the day of trial, subpoenaed by Preston, but the trial court ruled they were inadmissible because of remoteness in time and denied Preston access to the records. Preston argues that these records could have impeached Ervin's ability to clearly discern and to recall, after a day of drinking, whether Preston was sober and knew what he was doing at the time of the murders, as Ervin so testified. Preston places great emphasis on Ervin's perceptive ability because Preston's lack of mental capacity to commit capital murder was the defense at trial. During the direct appeal and state post-conviction proceedings, none of Preston's attorneys ever obtained and reviewed these records. Preston's counsel in this habeas action was the first to do so.

Preston first presented his Brady claim to the Missouri Supreme Court in a Missouri Supreme Court Rule 91 habeas petition in December 1992. On January 25, 1993, the court summarily denied Preston's petition, stating only: "Now at this day, on consideration of a petition for writ of habeas corpus to the said respondent, it is ordered by the court [h]ere that the said petition be, and the same is hereby denied." Based on this order, the district court ruled that Preston procedurally defaulted his Brady claim in the state courts.

Preston argues that his claim is not procedurally barred because the Missouri Supreme Court reviewed the merits of his Brady claim. He cites two reasons: First, because roughly four weeks elapsed between the time he filed his Rule 91 petition and its denial, and second, because his claim of newly discovered evidence was a proper basis for a state habeas claim. See State ex rel. Simmons v. White, 866 S.W.2d 443, 446 (Mo. 1993) (en banc) (Rule 91 petition "may be used to challenge a final judgment after an individual's failure to pursue appellate and post-conviction remedies only to raise jurisdictional issues or in circumstances so rare and exceptional that a manifest injustice results."); Wilson v. State, 813 S.W.2d 833, 834-35 (Mo. 1991) (en banc) (newly discovered evidence can be basis for Rule 91 petition).

Prior to the decision in Simmons, we decided Byrd v. Delo, 942 F.2d 1226 (8th Cir. 1991), a case involving the Missouri Supreme Court's summary denial of a Rule 91 habeas petition with the same language as used in this case. We stated, "[a]fter Coleman [v. Thompson, 501 U.S. 722 (1991)], there is simply no reason to construe an unexplained Rule 91 denial as opening up the merits of a previously defaulted federal issue," because such a denial rests on the Missouri procedural rule that Rule 91 cannot be used to raise claims that could have been raised on direct appeal or in a timely motion for post-conviction relief. Byrd, 942 F.2d at 1232. Both before and after Simmons, we have consistently followed Byrd's rule regarding unexplained denials of Rule 91 petitions. See Reese v. Delo, 94 F.3d 1177, 1181 (8th Cir. 1996); Charron v. Gammon, 69 F.3d 851, 857 (8th Cir. 1995), cert. denied, 116 S. Ct. 2533 (1996); Anderson v. White, 32 F.3d 320, 321 n.2 (8th Cir. 1994); Battle v. Delo, 19 F.3d 1547, 1561 (8th Cir. 1994) (subsequent history omitted); Blair v. Armontrout, 976 F.2d 1130, 1136 (8th Cir. 1992), cert. denied, 508 U.S. 916 (1993).

Preston argues that these cases following Byrd are distinguishable because none of them involved a claim of newly discovered evidence suppressed by the prosecutor. We disagree. We see no reason to deviate from the rule enunciated in Byrd, and we decline to create a new body of case law making distinctions between the Missouri Supreme Court's unexplained summary denials of Rule 91 petitions in various cases.

In any event, to the extent we can read meaning into the Missouri Supreme Court's order, we find that the summary denial rested on Missouri's procedural rules. While a claim of newly discovered evidence is cognizable in a Rule 91 petition, the Missouri Supreme Court has also stated that to avoid a procedural default a habeas petitioner "would have to establish that the grounds relied on were not `known to him' while proceeding" on his normal post-conviction relief motion. White v. State, 779 S.W.2d 571, 572 (Mo. 1989) (en banc); see also State ex rel. Simmons, 866 S.W.2d at 446-47; Reese, 94 F.3d at 1181; Sloan v. Delo, 54 F.3d 1371, 1382 (8th Cir. 1995), cert. denied, 116 S. Ct. 728 (1996). Preston argues that Ervin's medical records are newly discovered. He also argues that the prosecutor misled Preston's counsel by misrepresenting the contents of the records as relating only to Ervin's diabetes. To the contrary, the trial transcript shows that Preston's attorney knew that the medical records related to Ervin's alcoholism and possible psychiatric problems. Simply put, the basis of Preston's Brady claim was known to him from the day of his trial, and there is no evidence in the record that it could not have been further investigated and raised in his direct appeal or post-conviction relief motion.

Preston can lift the procedural bar to his Brady claim if he shows cause and actual prejudice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Reese, 94 F.3d at 1182. Preston alleges as grounds for cause state interference, the ineffective assistance of trial and appellate counsel, and mental illness during the pendency of his state court proceedings. Even if we were to assume in this case that any of these grounds could serve as cause, Preston has failed to demonstrate that he was actually prejudiced. "`To demonstrate prejudice, a petitioner must show that the errors of which he complains "worked to his actual and substantial disadvantage, infecting his entire [trial] with error of constitutional dimensions."'" Charron, 69 F.3d at 858 (quoting Jennings v. Purkett, 7 F.3d 779, 782 (8th Cir. 1993) (quoting United States v. Frady, 456 U.S. 152, 170 (1982))); see also Zinzer v. Iowa, 60 F.3d 1296, 1299 n.7 (8th Cir. 1995).

We have reviewed the medical records in question, and we conclude that they would have had only marginal impeachment value. As the trial court ruled, the records are remote in time and there is no evidence that the problems for which Ervin was treated reoccurred between 1974 and the time of the killings in 1980. Furthermore, Preston's trial counsel attempted to impeach Ervin by questioning him about his alcoholism, his drinking on the day of the murders, his vague and internally inconsistent testimony, and the serious conflicts between his testimony and that of Sherry Brown. Moreover, the State did not rely solely on Ervin's statements that Preston was sober and knew what he was doing to prove Preston's mental capacity to commit capital murder.⁵ Therefore, we conclude that Preston has not demonstrated he was actually prejudiced by his inability to use Ervin's medical records at trial or counsel's failure to raise the issue on appeal.

Finally, the...