Ramsey v. Bowersox, No. 97-1576

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore FAGG, JOHN R. GIBSON, and HANSEN; FAGG; JOHN R. GIBSON
Citation149 F.3d 749
Docket NumberNo. 97-1576
Decision Date10 June 1998
PartiesRoy RAMSEY, Appellant, v. Michael BOWERSOX, Superintendent, Appellee.

Page 749

149 F.3d 749
Roy RAMSEY, Appellant,
v.
Michael BOWERSOX, Superintendent, Appellee.
No. 97-1576.
United States Court of Appeals,
Eighth Circuit.
Submitted April 16, 1998.
Decided June 10, 1998.

Page 753

Charles Rogers, Kansas City, MO, argued (James R. Hobbs, Marilyn B. Keller, Cheryl A. Pilate, on the brief), for Appellant.

Frank A. Jung, Jefferson City, MO, argued, for Appellee.

Before FAGG, JOHN R. GIBSON, and HANSEN, Circuit Judges.

FAGG, Circuit Judge.

Roy Ramsey, a Missouri death row inmate, appeals the district court's denial of his petition for a writ of habeas corpus. See 28 U.S.C. § 2254. We affirm.

On November 21, 1988, Ramsey and his brother, Billy, went to the home of an elderly couple, Garnett and Betty Ledford, to rob them. Billy's girlfriend drove the brothers there in her car. Ramsey had a gun, but Billy did not. Garnett answered the door, and Ramsey used the gun to force his way inside. The brothers took the Ledfords upstairs to a bedroom. After Betty opened the Ledfords' safe, the brothers tied her in a chair. Billy went downstairs with some of the loot, including money, guns, a videocassette recorder, and foreign coins, and Ramsey killed the Ledfords by shooting each of them at close range in the head. Several days later, the brothers were caught. Billy entered a plea agreement and testified against Ramsey in exchange for a twenty-five-year sentence. A Missouri jury convicted Ramsey of first-degree murder and sentenced him to death. The Missouri Supreme Court affirmed Ramsey's conviction and sentence on direct appeal. See State v. Ramsey, 864 S.W.2d 320 (Mo.1993), cert. denied, 511 U.S. 1078, 114 S.Ct. 1664, 128 L.Ed.2d 380 (1994).

Ramsey filed this federal habeas petition in December 1995. A year later, the district court denied Ramsey's petition. Seeking permission to appeal twenty-five issues, Ramsey asked us "for a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and Federal Rule of Appellate Procedure 22(b)." We remanded Ramsey's request to the district court for compliance with the statute and rule cited by Ramsey. The district court granted a certificate of appealability on eleven issues and denied a certificate on fourteen others. Ramsey then sought an expanded certificate of appealability or certificate of probable cause from us. We denied Ramsey's request and thus limited the issues to only those that satisfied the standard for

Page 754

granting either certificate--the same eleven identified by the district court. We turn initially to the eleven issues certified for appeal.

Ramsey first asserts he was denied effective assistance of counsel and due process because his trial attorney had a conflict of interest. During the hearing on Ramsey's motion for a new trial, the prosecutor brought the court's attention to a newspaper article that spoke of letters written to Ramsey from Billy, whose judgment in accordance with his plea agreement could still be set aside. In the letters, Billy apologized for giving false testimony at Ramsey's trial. The trial court asked Ramsey's attorney to produce the letters, and the attorney refused, citing a conflict of interest. Ramsey asserts a conflict existed at the posttrial hearing with respect to the letters' production because his attorney was at risk of being found to have provided ineffective assistance during the trial in failing to use the letters. Ramsey's counsel, a Missouri public defender from the district 48 office (Trial Trans. at 1852) sought to withdraw, but the court denied the motion. Although the court doubted a conflict existed, the court obtained a different Missouri public defender from the district 16 office (Trial Trans. at 1852) to advise Ramsey on the limited issue of whether to produce the letters at the hearing on the motion for a new trial. Ramsey decided not to produce the letters. Ramsey contends his trial attorney's posttrial conflict carries over to all the Missouri public defender's offices, and thus the court should have appointed an attorney in private practice to advise him.

To prevail on his claim, Ramsey must show both an actual conflict of interest and an adverse effect on his attorney's performance. See Nave v. Delo, 62 F.3d 1024, 1034 (8th Cir.1995), cert. denied, 517 U.S. 1214, 116 S.Ct. 1837, 134 L.Ed.2d 940 (1996). Even if Ramsey's trial attorney had a conflict posttrial about production of the letters, it cannot be imputed to the attorney from a different Missouri public defender's office solely by reason of the statutorily created relationship between the offices. See id. at 1034-35. Besides, Ramsey has not shown any adverse effect from the presumed advice not to produce the letters at the new trial hearing. Ramsey's ineffective assistance claim also fails because, as the Missouri Supreme Court found, his trial attorney's failure to introduce the letters as evidence at trial was not deficient performance, but sound trial strategy. See Ramsey, 864 S.W.2d at 339. Indeed, at the new trial hearing, Billy testified his trial testimony was truthful and the letters were fabricated.

Second, Ramsey attacks the Missouri Supreme Court's proportionality review of his death sentence on direct appeal under Mo.Rev.Stat. § 565.035. Contrary to Ramsey's assertions, Missouri's proportionality review does not violate the Eighth Amendment, due process, or equal protection of the laws. See Sweet v. Delo, 125 F.3d 1144, 1159 (8th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1197, 140 L.Ed.2d 326 (1998). The Missouri Supreme Court concluded Ramsey's "sentence is not disproportionate," Ramsey, 864 S.W.2d at 327, and we see no basis for looking behind that conclusion, see Sweet, 125 F.3d at 1159.

Third, Ramsey contends his death sentence is based on an invalid aggravating circumstance: that the homicide was "outrageously or wantonly vile, horrible or inhuman in that it involved torture or depravity of mind." According to Ramsey, this aggravating circumstance is vague or overbroad because it does not define "torture or depravity of mind." "A finding of torture is sufficient to properly narrow the class of persons eligible for the death penalty." LaRette v. Delo, 44 F.3d 681, 686 (8th Cir.1995). As for depravity of mind, the Missouri Supreme Court has judicially defined and limited the term. See Ramsey, 864 S.W.2d at 328. In Ramsey's case, the court gave the term a limiting construction by instructing the jury it could find depravity if it found Ramsey bound Betty or planned to kill more than one person, and had a callous disregard for human life. The limiting construction gave adequate guidance to the sentencer. See Battle v. Delo, 19 F.3d 1547, 1562 (8th Cir.1994). Even if the instruction were unconstitutionally vague, the jury's penalty phase verdict was reliable because the jury found several other unchallenged aggravating circumstances that

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support Ramsey's death sentence. See Sloan v. Delo, 54 F.3d 1371, 1385-86 (8th Cir.1995) (in nonweighing state like Missouri, jury's finding of invalid aggravating factor does not invalidate death verdict when jury finds at least one valid aggravating factor).

Fourth, Ramsey contends his right to confront and cross-examine witnesses against him was violated when the trial court admitted parts of a videotaped statement by Billy about Ramsey's role in the murders. Police made the tape when they brought Billy, a suspect in the murders, into the police station for questioning early in the investigation, before Billy made a plea bargain. Billy initially denied any knowledge of the robbery, then said someone other than Ramsey was his accomplice. After police confronted Billy with the statements of his mother, aunt, and girlfriend saying Ramsey and Billy committed the robbery and Ramsey had a gun, Billy gave the videotaped statement implicating his brother. At the prosecutor's behest, the trial court admitted parts of the tape in rebuttal after defense counsel suggested on cross-examination that Billy fabricated his trial testimony to save his own neck. Defense counsel had brought out that Billy's testimony was the product of a plea bargain and there were inconsistencies between Billy's trial testimony and earlier statements made in his deposition and at the time of his arrest. Although the court admitted parts of the tape, the court instructed the jury it should not consider the tape as substantive evidence.

We see no violation of Ramsey's right to confront witnesses against him. "[T]he Confrontation Clause is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination." California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); see McDonnell v. United States, 472 F.2d 1153, 1155-56 (8th Cir.1973). In Ramsey's case, Billy testified as a witness at trial, and Ramsey does not identify anything that prevented him from recalling Billy and questioning him about the tape. Ramsey's inability to cross-examine Billy earlier when he gave the statement at the police station does not violate the Confrontation Clause. See Green, 399 U.S. at 159, 90 S.Ct. 1930 (inability to cross-examine witness at time of out-of-court statement is insignificant if defendant can cross-examine witness at trial). Ramsey misplaces reliance on Tome v. United States, 513 U.S. 150, 156-60, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995) (witness's earlier consistent out-of-court statement introduced to rebut charge of recent fabrication or improper influence or motive is inadmissible under Federal Rule of Evidence 801(d)(1)(B) when made before alleged fabrication, influence, or motive came into being). The Missouri Supreme Court decided the videotaped statements were admissible under state evidentiary law consistent with Tome, see Ramsey, 864 S.W.2d at 329, and we cannot disturb that decision. See Cornell v. Iowa, 628 F.2d 1044, 1048 n. 3 (8th Cir.1980).

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    ...Mills v. Norris , 187 F.3d 881, 881 n.1 (8th Cir. 1999) ; Carter v. Hopkins , 151 F.3d 872, 873–74 (8th Cir. 1998) ; Ramsey v. Bowersox , 149 F.3d 749, 759 (8th Cir. 1998) ; Cox v. Norris , 133 F.3d 565, 569 (8th Cir. 1997). "A substantial showing is a showing that issues are debatable amon......
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143 cases
  • Williams v. United States, No. C13-4025-MWB
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • August 13, 2014
    ...Mills v. Norris, 187 F.3d 881, 882 n.1 (8th Cir. 1999); Carter v. Hopkins, 151 F.3d 872, 873-74 (8th Cir. 1998); Ramsey v. Bowersox, 149 F.3d 749 (8th Cir. 1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). "A substantial showing is a showing thatPage 24issues are debatable among reas......
  • U.S. v. Vazque-Munoz, No. CR99-4057-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • September 28, 2006
    ...Mills v. Norris, 187 F.3d 881, 882 n. 1 (8th Cir.1999); Carter v. Hopkins, 151 F.3d 872, 873-74 (8th Cir.1998); Ramsey v. Bowersox, 149 F.3d 749 (8th Cir.1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir.1997). "A substantial showing is a showing that issues are debatable among reasonable ju......
  • U.S. v. Luna, No. CR 00-4022-MWB.
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    • United States District Courts. 8th Circuit. Northern District of Iowa
    • October 3, 2006
    ...Mills v. Norris, 187 F.3d 881, 882 n. 1 (8th Cir.1999); Carter v. Hopkins, 151 F.3d 872, 873-74 (8th Cir.1998); Ramsey v. Bowersox, 149 F.3d 749 (8th Cir.1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir.1997), cert. denied, 525 U.S. 834, 119 S.Ct. 89, 142 L.Ed.2d 70 (1998). "A substantial s......
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    • November 5, 2019
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