Roll v. Bowersox
| Decision Date | 14 August 1998 |
| Docket Number | No. 98-0136-CV-W-6.,98-0136-CV-W-6. |
| Citation | 16 F.Supp.2d 1066 |
| Parties | Gary Lee ROLL, Petitioner, v. Michael BOWERSOX, Respondent. |
| Court | U.S. District Court — Western District of Missouri |
Michael S. Shipley, Withers, Brant, Igoe & Mullenix, Liberty, MO, Connie M. Francis, Walters, Bender & Strohbehn, P.C., Kansas City, MO, for Plaintiff.
Stacy Anderson, Ass't. MO State Attorney General, Jefferson City, MO, for Defendant.
Petitioner Gary Lee Roll seeks federal habeas corpus review under 28 U.S.C. § 2254 of his murder conviction and subsequent death sentence. Petitioner was charged with three counts of first degree murder, three counts of armed criminal action and one count of first degree robbery. In August 1993 he pled guilty in the Circuit Court of Boone County to all of these charges, without benefit of a plea agreement. The factual basis for the plea, as described by the Missouri Supreme Court is as follows:
After ingesting alcohol, marijuana, and four to six hits of LSD, Gary Lee Roll, David Rhodes, and John Browne decided to rob a drug dealer. Roll supplied each of them with a gun and a knife and drove the three to the home of an alleged drug dealer. When Roll attempted to force open the front door, a child cried out. Rhodes and Browne refused to go inside, so they all returned to Roll's residence.
Later that night, they decided to rob a different drug dealer, Randy Scheper. At about 4:00 a.m., Roll drove to Scheper's house, with Rhodes and Browne. Roll knocked on the door and Scheper's mother, Sherry, answered. Displaying a badge, Roll identified himself as a police officer and ordered her to open the door. When she did, Roll and Rhodes entered. Browne, who knew the family, remained outside, fearing he would be recognized. Inside the house, Roll fatally shot Randy in the head and beat Sherry to death with his gun. Roll (either alone or in concert with Rhodes) fatally stabbed Randy's brother, Curtis. Roll, Rhodes and Browne then left with some marijuana and $215 in cash.
Returning home, Roll cleaned blood and hair from his gun and blood off his knife and clothing. He wrapped the murder weapons and a box of ammunition in a package, which his son buried in the woods behind Roll's house.
In the weeks after the murders, Browne began to fear for his safety. To protect himself, Browne wore a tape recorder during a conversation with Roll about the murders. On the tape, Roll admitted committing the murders and getting rid of the murder weapons. Roll also said that he killed the Schepers because "they knew everybody ... And I figured then they even knew me, because of something that was said in there...." Browne gave the tape to a friend for safekeeping, who in turn gave it to the police.
State v. Roll, 942 S.W.2d 370, 373(Mo.), cert. denied, ___ U.S. ___, 118 S.Ct. 378, 139 L.Ed.2d 295 (1997).
Some two months after the plea, on November 5, 1993, the Circuit Court commenced petitioner's sentencing hearing. On November 16, 1993, the court sentenced petitioner to death for each of the three counts of murder, to 30 years imprisonment for each armed criminal action charge and to 20 years imprisonment on the robbery count, with all sentences to run consecutively. Petitioner submitted a pro se and then, after appointment of counsel, an amended motion for post-conviction relief pursuant to Missouri Supreme Court Rule 24.035. After a full hearing this motion was denied the following year, in December 1994. Petitioner then appealed his convictions and sentences and the denial of post-conviction relief. The Missouri Supreme Court affirmed in March 1997. After denial of certiorari, this proceeding was instituted on January 30, 1998.
This ruling by the court is slightly out of time, if the 180 day period prescribed in 28 U.S.C. § 2266(b)(1)(A) is applicable. Although the State contends that Missouri became an "opt-in" State, as of the Summer of 1997, making applicable 28 U.S.C. §§ 2261, et seq, at oral argument it was tacitly acknowledged that the scheduling here has been realistically prompt and that efforts to obtain mandamus would probably be reserved for instances where there has been substantial processing delay. Nevertheless I would take a statutory deadline more seriously, when at all feasible, if applicable. With somewhat less care it would have been possible to decide this case several weeks ago. I am convinced, however, that expedited death penalty reviews are reserved for cases in which an inmate, unlike petitioner, has received the benefit of the post-conviction assistance specified by Congress. Bennett v. Angelone, 92 F.3d 1336, 1342 (4th Cir.1996) (); Wright v. Angelone, 944 F.Supp. 460, 463 (E.D.Va.1996); Ashmus v. Calderon, 935 F.Supp. 1048, 1053 (N.D.Cal.1996), aff'd 123 F.3d 1199 (9th Cir. 1997), rev'd on other grounds, Calderon v. Ashmus, ___ U.S. ___, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998). In Bennett, where appellate argument occurred in May 1996, the court gave a restricted reading to the mandate that the special capital case procedures should apply to "cases pending on or after the date of enactment of this Act" (April 24, 1996). The case apparently construes the statutory expedited procedures as being applicable under 28 U.S.C. § 2261(a) "if the provisions of subsections (b) and (c) are satisfied" not only as to the States seeking to opt in but also to prisoners who have benefitted from the legislation. Ashmus expressly refers to what benefit the condemned prisoner has received. 123 F.3d at 1202. So construing the legislation may be required to avoid a due process problem of retroactivity if prisoners who have not been benefitted are forced into expedited procedures designed for prisoners who have received such benefits. Compare, Eastern Enterprises v. Apfel, ___ U.S. ___, ___ _ ___, 118 S.Ct. 2131, 2158-9, 141 L.Ed.2d 451 (concurring opinion), 2163 ("the potential unfairness of retroactive liability ... finds a natural home in the Due Process Clause.") (dissenting opinion) (1998). In a rare use of the concept of substantive due process, Judge Learned Hand opined that a capriciously retroactive application of a tax statute was simply "too whimsical to stand." Frew v. Bowers, 12 F.2d 625, 630 (2d Cir.1926) (concurring opinion). Any Congressional intent to expedite the imposition of the death penalty of Convict A because the State has increased its vigilance to provide Convict B with more adequate post-conviction representation would make a "mere sport" of the reviewing process.1
The foregoing explains my failure to use the statutory death penalty processing of this case and perhaps may be useful to the Court of Appeals in determining appellate practice.2
* * * * * *
Petitioner advances a number of claims in support of his petition for habeas relief. He contends that his counsel was ineffective for (1) failing to investigate a diminished capacity defense; (2) failing to advise petitioner of a potential diminished capacity defense; (3) failing to investigate and present possible mitigating evidence relating to his mental condition (as affected by drugs) during the penalty phase of petitioner's proceedings; (4) failing to advise petitioner that he could be sentenced based upon a different theory of liability (as to one of the deaths) than that to which he pled guilty or to object during sentencing to evidence of a different theory of liability; (5) advising petitioner that he would not receive the death penalty if he pled guilty; and (6) acting under a conflict of interest. Petitioner further argues that his guilty plea was not knowing, intelligent and voluntary because he was not advised of a potential defense of diminished capacity, of the fact that he could be sentenced based upon a theory of liability different from that to which he pled guilty, or of the required mental state for first-degree murder. Petitioner also contends that his due process and Eighth Amendment rights were violated by the Missouri Supreme Court's proportionality review and when the sentencing court allegedly refused to consider relevant mitigating evidence.
Petitioner's claims are governed by 28 U.S.C. § 2254(d), as amended on April 24, 1996.3 The statute provides that State Court determinations are entitled to deference, as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence in the State court proceeding.
28 U.S.C. § 2254(d)(1) & (2). A state court's factual findings are "presumed to be correct" and can only be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
To successfully assert a claim of ineffective assistance of counsel, movant must demonstrate that counsel's performance was deficient as a matter of constitutional law and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A constitutionally deficient performance is one that falls "outside the wide range of professionally competent assistance." Id. at 690, 104 S.Ct. 2052. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the...
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...district courts of Missouri have had similar doubts about Missouri's qualification under chapter 154. See Roll v. Bowersox, 16 F. Supp. 2d 1066, 1071-72 & n.2 (W. D. Mo. 1998) (although state contended Missouri qualified for chapter 154 in the summer of 1997, district court disagreed and no......
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