Schneider v. Delo

• Decision Date: 08 June 1995
• Docket Number: No. 90CV1968SNL.,90CV1968SNL.
• Citation: 890 F. Supp. 791
• Parties: Eric Adam SCHNEIDER, Petitioner, v. Paul DELO, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

890 F. Supp. 791

Eric Adam SCHNEIDER, Petitioner, v. Paul DELO, Respondent.

No. 90CV1968SNL.

United States District Court, E.D. Missouri, Eastern Division.

June 8, 1995.

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N. Scott Rosenblum, Ramona L. Martin, Wittner and Poger, St. Louis, MO, for petitioner Eric Adam Schneider.

Frank A. Jung, Asst. Atty. Gen., Office of Atty. Gen. of Missouri, Ray Wagner, Counsel to the Governor, Jefferson City, MO, for respondent Paul Delo.

MEMORANDUM AND ORDER

LIMBAUGH, District Judge.

This matter is before the Court on Petitioner Schneider's First Amended Petition for Writ of Habeas Corpus, filed October 11, 1991. The State of Missouri filed its amended response on December 20, 1991. On February 14, 1992 petitioner filed his reply to the State's amended response.¹

On October 30, 1985 a jury in the Circuit Court of Jefferson County convicted petitioner of the capital murders of Ronald Thompson and Richard Schwendemann. The jury recommended a sentence of death for the murder convictions. On December 4, 1985 Judge John L. Anderson sentenced petitioner to death. Petitioner filed a motion for a new trial which the trial court denied. The Missouri Supreme Court affirmed the convictions and death sentence on direct appeal. State v. Schneider, 736 S.W.2d 392 (Mo.1987). On February 4, 1988 petitioner filed a pro se Rule 29.15 motion for post-conviction relief.² The sentencing court appointed counsel to represent him and appointed counsel filed an amended Rule 29.15 motion. After holding evidentiary hearings on August 24, 1988 and January 6, 1989, the court denied the amended Rule 29.15 motion. Petitioner appealed the denial of his amended Rule 29.15 motion. On April 17, 1990 the Missouri Supreme Court denied the appeal, and shortly thereafter, denied petitioner's motion for rehearing. Schneider v. State, 787 S.W.2d 718 (Mo.1990). On October 1, 1990 the United States Supreme Court denied petitioner's Writ of Certiorari. On October 16, 1990 petitioner filed his Rule 91 state petition for writ of habeas corpus. That same day the Missouri Supreme Court denied his Rule 91 state petition for writ of habeas corpus. It further set an execution date for October 18, 1990.

On October 17, 1990 petitioner filed a motion for stay of execution with this Court, his original petition for writ of habeas corpus, and a motion for appointment of counsel. On October 17, 1990 this Court entered its order staying the execution date of October 18, 1990 and appointing counsel for petitioner. Appointed counsel then proceeded to file the instant amended petition for writ of habeas corpus.

Petitioner has alleged twenty-five (25) grounds of error which he believes support his claim for federal habeas corpus relief. Ground III, alleging ineffective assistance of trial counsel at both the guilt phase and sentencing phase of trial, lists thirty-six (36) separate instances of ineffective assistance of trial counsel. The circumstances of the murders for which Mr. Schneider was convicted are discussed in detail by the Missouri Supreme Court in State v. Schneider, 736 S.W.2d 392 (Mo.1987) and will not be reiterated in this memorandum, except when necessary to support a finding or conclusion reached by this Court. Other than the parties' pleadings, the Court has for review various State exhibits, including but not limited to, the trial transcript (Volumes I-V), preliminary hearing transcript, deposition of David Morgan (one of petitioner's two co-defendants), briefs regarding the direct appeal, transcript of the amended Rule 29.15 evidentiary hearings, briefs regarding the appeal of the denial of the amended Rule 29.15, certified copies of the Missouri Supreme Court's decisions regarding this case, and xerox copies of photographs of the victims. Also submitted for the Court's consideration are petitioner's exhibits 1-10 consisting primarily of the affidavits of his post-conviction counsel, affidavits and psychiatric exam findings of Dr. A.E. Daniel, and affidavits of various family members of the petitioner. Petitioner seeks to expand the record pursuant to Rule 7(a)-(c) of the Rules Governing Section 2254 Cases. As will be elaborated further in this memorandum, the majority of the petitioner's grounds for federal habeas relief are procedurally barred; the remaining grounds can be sufficiently reviewed based upon the record that was presented to the state courts. Since these documents were not part of the state court record, and the petitioner has not offered any reason as to why these documents were not made a part of the state court record, this Court will not engage in further factfinding based upon an expanded record presented to this Court. See, Bolder v. Armontrout, 921 F.2d 1359, 1364 (8th Cir. 1990); Byrd v. Armontrout, 686 F.Supp. 743, 778 (E.D.Mo.1988), aff'd 880 F.2d 1 (8th Cir. 1989) referred to in Byrd v. Delo, 942 F.2d 1226, 1230 (8th Cir.1991) (consideration of petitioner's third petition for writ of habeas corpus and denying same).

Similarly, petitioner's request that he be granted an evidentiary hearing and time to conduct further discovery will be denied. The Court has carefully reviewed the pleadings, the trial and evidentiary hearings transcripts, and the state courts decisions regarding this case. Upon review of these documents the Court finds that the record as it now exists is adequate and that no evidentiary hearing or further discovery is required. See, 28 U.S.C. § 2254, Rules 6 and 8(a).

Procedural Bar to Petitioner's Claims

The State contends that a majority of the petitioner's grounds for federal habeas relief are procedurally defaulted because he did not adequately present them to the Missouri state courts.³ Federal habeas review is barred when a state court has not decided a federal claim on the merits because the petitioner violated a state procedural law. In such cases, the state judgment rests on independent and adequate state procedural grounds. Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 81, 87, 97 S.Ct. 2497, 2503-04, 2506-07, 53 L.Ed.2d 594 (1977). Before a petitioner can bring a § 2254 action, he must have presented the same legal theories and factual bases to the state courts. Forest v. Delo, 52 F.3d 716 (8th Cir.1995); Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th Cir.1995); Battle v. Delo, 19 F.3d 1547, 1552 (8th Cir.1994) citing Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982). In order for a § 2254 petitioner to avoid default, Missouri post-conviction procedure mandates that each and every claim be presented "at each step of the judicial process". Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir.1994); Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir.1994) quoting Benson v. State, 611 S.W.2d 538, 541 (Mo.App.1980). Claims not presented in the state courts through post-conviction relief procedures are procedurally barred unless the petitioner can demonstrate both cause for the procedural default and actual prejudice resulting from the default; or can show that failure to consider the claims will result in a fundamental miscarriage of justice because petitioner has evidence of his "actual innocence". Schlup v. Delo, ___ U.S. ___, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Sawyer v. Whitley, ___ U.S. ___, ___, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992); Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2564-65; Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Schleeper, at 737; Battle v. Delo, at 1552.

Schneider contends that his claims are not procedurally barred pursuant to Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) because the Missouri Supreme Court in ruling upon his Rule 91 state habeas petition did not "clearly and expressly" state that its denial of the petition was due to procedural default; i.e. its "unexplained ruling" should be considered a ruling on the merits of the claims contained in the petition. In the alternative, Schneider argues that even if his claims (or a majority of them) are procedurally barred, he can demonstrate "cause and actual prejudice" warranting this Court's review of his claims.⁴

In order to establish cause, petitioner must show that some objective factor external to the defense impeded his counsel or his efforts to comply with the state procedural requirements. Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2564-65; Murray v. Carrier, 477 U.S. at 492, 106 S.Ct. at 2647-48. Examples of such "cause" are a "showing that the factual or legal basis for a claim was not reasonably available to counsel", or that "some interference by officials made compliance impracticable". Murray v. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645.

Plaintiff consistently argues that even if this Court considers his claims procedurally barred, he has met the "cause" test by the ineffective assistance of his direct appeal counsel, Rule 29.15 post-conviction relief counsel, and Rule 29.15 motion appellate counsel. He argues that the ineffective assistance of his post-conviction counsel for failing to raise his claims on direct appeal, or in his Rule 29.15 motion, or in his appeal of the denial of his 29.15 motion, constitutes "cause" and that the fact that his death sentences have been upheld constitutes "actual prejudice". For reasons which will be set forth when addressing the individual claims, plaintiff has failed to show "cause" for his procedural defaults.

Petitioner's argument that the filing of his Rule 91 state habeas petition and the Missouri Supreme Court's denial of same excuses his procedural default is meritless. Petitioner contends that, pursuant to Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), the Missouri Supreme Court's unexplained...