Schlup v. Armontrout
| Decision Date | 09 October 1991 |
| Docket Number | No. 90-1164,90-1164 |
| Citation | 941 F.2d 631 |
| Parties | Lloyd Eugene SCHLUP, Appellant, v. Bill ARMONTROUT, Warden, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
David C. Howard, St. Louis, Mo., for appellant.
Jared R. Cone, argued (William L. Webster, on brief), Jefferson City, Mo., for appellee.
Before JOHN R. GIBSON and BEAM, Circuit Judges, and HEANEY, Senior Circuit Judge.
Lloyd Eugene Schlup, a Missouri death row inmate, appeals from the judgment of the district court 1 denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254 (1988). Schlup asserts that the district court erred in holding that many of his ineffective assistance of counsel claims were procedurally barred, in denying another ineffective assistance of counsel claim on the merits, and in failing to grant him an evidentiary hearing on his habeas petition. Additionally, on the eve of oral argument before this court, Schlup filed a motion requesting this court to hold in abeyance a ruling on the merits of this appeal and allow him to submit certain claims to the Missouri state courts. 2 We deny the motion and affirm the judgment of the district court.
On December 11, 1985, while in prison on an unrelated matter, 3 Schlup was convicted of capital murder in the death of a fellow inmate. 4 Schlup's conviction and sentence Schlup filed a state court motion for post-conviction relief under Missouri Supreme Court Rule 27.26. Schlup argued that his sentence and conviction should be vacated because he was denied effective assistance of trial counsel. Schlup claimed that his trial counsel failed to prepare for aggravating circumstances testimony and request a continuance of the trial to prepare for the testimony, and to investigate and call additional alibi witnesses. After an evidentiary hearing, the Missouri court held that Schlup's trial counsel was not ineffective and denied Schlup's claim for post-conviction relief.
were affirmed on direct appeal by the Missouri Supreme Court. State v. Schlup, 724 S.W.2d 236 (Mo.), cert. denied, 482 U.S. 920, 107 S.Ct. 3198, 96 L.Ed.2d 685 (1987).
Schlup appealed the denial of post-conviction relief to the Missouri Supreme Court. Schlup reasserted the ineffectiveness claim based on aggravating circumstances testimony, but he did not reassert the argument that trial counsel failed to investigate and call additional alibi witnesses. The Missouri Supreme Court affirmed the denial of post-conviction relief on direct appeal. Schlup v. State, 758 S.W.2d 715 (Mo.1988).
Schlup subsequently filed a petition for writ of habeas corpus in federal district court asserting numerous claims based on ineffective assistance of counsel. Schlup reasserted the claim that his trial counsel was ineffective in failing to prepare for aggravating circumstances testimony or request a continuance, and the claim that trial counsel was ineffective in not calling additional alibi witnesses. In addition, Schlup asserted, for the first time before the district court, claims based on trial counsel's failure to offer psychiatric or psychological testimony as mitigating evidence during the guilt phase of Schlup's trial, and failure to object to unconstitutional jury instructions. Schlup argued that none of his claims should be procedurally barred because the ineffective assistance of his state court appellate and post-conviction counsel provided cause to justify the procedural default, and that prejudice resulted from the ineffective assistance. Schlup requested, but was denied, an evidentiary hearing on his petition.
The district court denied Schlup's petition. The court held that Schlup's new claims, that trial counsel was ineffective in failing to offer psychiatric or psychological testimony and to object to jury instructions, as well as the previous claim that trial counsel failed to call additional alibi witnesses, were procedurally barred. The court concluded that these claims had not been adequately raised or pursued in state court and that Schlup failed to demonstrate cause for the procedural default. 5 Schlup's remaining claim, that trial counsel failed to prepare for aggravating circumstances testimony and request a continuance of the trial, had been, according to the district court, exhausted in state court. However, the claim was denied on its merits.
One day before oral argument Schlup filed a motion to hold this case in abeyance. Schlup requests this court to postpone a ruling on the merits of this appeal and allow him to submit certain habeas claims to the Missouri state courts. We deny the motion.
In his motion, Schlup asserts that a recent decision of the United States Supreme Court establishes that he is entitled to relief on his habeas petition, and he argues that this claim should be presented to the state courts before proceeding with this appeal. Schlup contends that Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), which was decided after Schlup's trial and commencement of post-conviction proceedings, establishes that a jury instruction given in Schlup's trial was unconstitutional. In Mills, the state sentencing scheme required the imposition of the death penalty if mitigating circumstances did not outweigh aggravating circumstances. The jury instruction at issue in Mills required the jury to unanimously find the existence of the same mitigating circumstance before such circumstance could be considered by the jury to outweigh any aggravating circumstances. The Supreme Court invalidated the instruction because the instruction prevented individual jurors from considering all relevant mitigating circumstances, whether unanimously perceived or not, as a basis for imposing a penalty less than death. Id. at 384, 108 S.Ct. at 1870.
Schlup asserts that a jury instruction given in his case similarly required the jury to unanimously find the same mitigating circumstance before the jury could consider whether that mitigating circumstance outweighed any aggravating circumstances. See Respondent's Exhibit B at 98 (jury instruction 19). Thus, Schlup argues that the jury at his trial was required to impose the death sentence if it could not unanimously find the same mitigating circumstance. Schlup asserts that holding this appeal in abeyance pending further state action is an appropriate remedy. See Fletcher v. Armontrout, 733 F.Supp. 1348, 1349 (W.D.Mo.1990) (). See also Byrd v. Delo, 917 F.2d 1037, 1039 (8th Cir.1990) ().
This appeal should not be held in abeyance. Schlup seeks to return to state court and present a claim under the provisions of Missouri Supreme Court Rule 91, rather than the post-conviction relief provisions of Rules 24.035 and 29.15. 7 The Missouri The Missouri Supreme Court has previously rejected the Mills argument now advanced by Schlup. See State v. Petary, 790 S.W.2d 243, 245 (Mo.), cert. denied, --- U.S. ----, 111 S.Ct. 443, 112 L.Ed.2d 426 (1990); State v. Smith, 781 S.W.2d 761, 768 (Mo.1989), vacated and remanded, --- U.S. ----, 110 S.Ct. 1944, 109 L.Ed.2d 306, aff'd on remand, 790 S.W.2d 241 (1990). In Petary and Smith, the Missouri Supreme Court rejected the Mills argument on two bases. First, the court held that the mitigating circumstance instruction given in Missouri, which is a form instruction traditionally used by Missouri courts, is "markedly different" than the instruction given in Mills, and that the language of the Missouri instruction does not require a jury to be unanimous in finding each mitigating circumstance. Smith, 781 S.W.2d at 768. Second, the court held that Mills is not applicable to the Missouri instructions because an additional instruction used by Missouri courts specifically gives the jury discretion to impose a life sentence rather than death despite the existence of any aggravating circumstances. Petary, 790 S.W.2d at 246; Smith, 781 S.W.2d at 768. See also Roberts v. State, 775 S.W.2d 92, 96 (Mo.) (Blackmar, C.J., concurring) (distinguishing Mills ), cert. denied, --- U.S. ----, 110 S.Ct. 1506, 108 L.Ed.2d 640 (1990).
Supreme Court has not determined whether a petitioner may bring a Rule 91 petition after other post-conviction proceedings, or whether Rule 29.15 provides the exclusive post-conviction remedy to incarcerated persons. Because federal courts may not grant a habeas corpus petition unless the petitioner has exhausted all state remedies, see 28 U.S.C. § 2254(b), this undecided question has created problems in resolving exhaustion issues in federal habeas actions. See...To continue reading
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