Six v. Delo

• Decision Date: 02 May 1995
• Docket Number: No. 4:91CV02108 GFG.,4:91CV02108 GFG.
• Citation: 885 F. Supp. 1265
• Parties: Andrew SIX, Petitioner, v. Paul DELO, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

885 F. Supp. 1265

Andrew SIX, Petitioner, v. Paul DELO, Respondent.

No. 4:91CV02108 GFG.

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

May 2, 1995.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Philip M. Horwitz, Haller and Leonard, St. Louis, MO, Leo N. Griffard, Jr., Boise, ID, for Andrew W. Six.

Stephen Hawke, Asst. Atty. Gen., Jefferson City, MO, for Paul K. Delo.

MEMORANDUM

GUNN, District Judge.

This matter is before the Court on the petition for writ of habeas corpus of Andrew Six.

Petitioner was convicted of first degree murder and was sentenced to death. At the time of the killing, the victim, Kathy Allen, was twelve years old and living with her parents and her pregnant sister Christine, age seventeen, in Ottumwa, Iowa. On April 7, 1987, petitioner and Donald Eugene Petary visited the Allen's trailer-home to look at a pickup truck the family was trying to sell. On April 10, 1987, after purchasing duct tape and plastic gloves, the two men returned to the trailer in a station wagon late at night. They convinced Mrs. Allen to come with them on a test drive of the pickup.

During the drive, petitioner and Petary overpowered Mrs. Allen and taped her hands behind her back. Upon returning to the trailer, the two men, brandishing knives, taped Mr. Allen's hands and forced the couple and Kathy into a bedroom. While Petary guarded them, petitioner raped Christine in another room.

Following the rape, petitioner ordered Christine and Kathy to get dressed and had Petary take the two girls to the station wagon. Petitioner took the parents' wallets and tried to force the couple outside. Mr. Allen broke free and ran for help. Petitioner then slit Mrs. Allen's throat; Mrs. Allen survived. Meanwhile Christine had also broken free. Petitioner and Petary drove away with Kathy.

Kathy was later discovered in a ditch in Missouri. Her throat was deeply cut. She bled to death.

A jury found petitioner guilty of murder in the first degree. However, during the penalty phase of the trial, the jury was unable to agree on punishment. The trial judge imposed a sentence of death. Petitioner timely appealed his sentence and conviction and also the denial of post-conviction relief which he sought pursuant to Missouri Supreme Court rule 29.15. The Missouri Supreme Court consolidated petitioner's appeals and affirmed his conviction, sentence and the denial of post-conviction relief. State v. Six, 805 S.W.2d 159 (Mo.1991). The United States Supreme Court denied the petition for writ of certiorari. Six v. Missouri, 502 U.S. 871, 112 S.Ct. 206, 116 L.Ed.2d 165 (1991). Petitioner subsequently filed a motion to recall the mandate and a Rule 91 state habeas corpus petition, both of which were summarily denied by the Supreme Court of Missouri. Andrew Six filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on October 17, 1991. This Court appointed counsel, and the first amended petition presents numerous grounds for relief.

GROUND I. RIGHT TO AN UNBIASED TRIAL JUDGE

Petitioner argues that his sentence was made by a biased trial judge who favored the death penalty and was therefore not impartial in violation of the Eighth and Fourteenth Amendments. Petitioner explains that he and his co-defendant Petary were both charged with kidnapping Kathy Allen in the United States District Court for the Southern District of Iowa and with her murder in Schuyler County, Missouri. In September, 1987, both men were convicted of kidnapping and petitioner was sentenced to two hundred (200) years imprisonment without eligibility for parole for sixty-six (66) years.

Petitioner alleges that Schuyler County, Missouri, was experiencing a severe economic decline during 1987 and 1988 and that County Commissioners were concerned about the cost of trying Petary and petitioner. After considerable debate on the issue, the commission finally voted in favor of having the trial. According to petitioner, the Commissioners felt that the deaths of Petary and petitioner were worth pursuing despite the financial hardship. Petitioner alleges that the trial judge knew about this allocation of scarce resources and prior to the vote, even attended one of the commission's meetings at which the Commissioners asked for the trial judge's advice on ways to finance the operation of the court. Petitioner argues that the trial judge was biased in favor of the death penalty because he was under pressure to sentence Petary and petitioner to death to make Schuyler County's investment in the trials worthwhile and because he knew that he had to run for re-election every six (6) years.

Respondent argues that this ground is procedurally defaulted. Basically, before a petitioner can bring a federal habeas action, he must have presented the same legal theories and factual bases to the state courts. 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)). Claims not presented to the state court are procedurally barred unless petitioner can show cause for, and prejudice resulting from, the default. Smith v. Jones, 923 F.2d 588, 589 (8th Cir.1991). In addition, petitioner can raise a claim of actual innocence to prevent a procedural default, in which case, petitioner must offer new evidence that was not presented at trial because it was not available or was excluded and must "show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Schlup v. Delo, ___ U.S. ___, ___, 115 S.Ct. 851, 867, 130 L.Ed.2d 808 (1995).

Upon reviewing the record in this case, the Court concludes that petitioner first raised his claim that he was denied his right to an unbiased trial judge in his state habeas corpus petition. The Missouri Supreme Court denied that petition because it disclosed only procedurally barred claims not raised on direct appeal or in petitioner's Rule 29.15 motion. (Pet'r Exh. 1C.) As such, this claim is procedurally barred.

However, petitioner argues that the cause for and prejudice resulting from the default can be shown. Petitioner offers two arguments to show cause in this case: (1) ineffective assistance of post-conviction counsel and (2) the trial judge's failure to disclose to trial counsel information which would have alerted counsel to the judge's bias. Initially, the Court notes that the Eighth Circuit has held that ineffective assistance of post-conviction counsel cannot be "cause" for purposes of lifting a procedural bar. LaRette v. Delo, 44 F.3d 681, 688 (8th Cir.1995) (citing Foster v. Delo, 39 F.3d 873, 877 (8th Cir.1994) (en banc), cert. denied, ___ U.S. ___, 115 S.Ct. 1719, 131 L.Ed.2d 578 (1995)). Furthermore, petitioner's allegation that the trial judge's failure to disclose certain information to trial counsel does not constitute "cause" in this case.

The trial judge, the Honorable E. Richard Webber, testified at the Rule 29.15 evidentiary hearing as petitioner's first witness. Petitioner's post-conviction counsel questioned Judge Webber thoroughly about his involvement with Schuyler County's Commission and his knowledge of the County's financial difficulties. (Resp't Exh. D at 280-84). Judge Webber testified that he was on the State Court Budget Committee and that he worked with the commission for Schuyler County on the budgeting process. Id. at 281. He stated that he was not involved in any way in the decision to try Petary and petitioner, nor was he involved in discussions on the costs or financing of the trials. Id. at 282. He admitted that he had heard rumors of the costs and that he had told some court personnel that he thought the estimated cost was too high. Id. at 283.

Post-conviction counsel's questioning of Judge Webber reveals that counsel must have had some knowledge of Schuyler County's financial woes and of Judge Webber's work on the budgetary process before the Rule 29.15 hearing. As such, any claim of bias could have been brought as part of petitioner's Rule 29.15 motion, and the trial court's alleged failure to give trial counsel certain information cannot constitute "cause" sufficient to overcome the procedural bar in this case.

Furthermore, even if petitioner could demonstrate "cause" in this case, petitioner could not show prejudice because his claim of bias lacks merit. It is true that a fair trial before a fair tribunal is a basic requirement of due process. In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). The right to a fair trial necessarily requires that the trial judge be neutral, detached and free from actual bias. Dyas v. Lockhart, 705 F.2d 993, 995 (8th Cir.), cert. denied, 464 U.S. 982, 104 S.Ct. 424, 78 L.Ed.2d 359 (1983). "Generally, a habeas petitioner seeking reversal of his conviction on due process grounds because of the trial judge's alleged bias must demonstrate that the judge was actually biased or prejudiced against the petitioner." Id. at 996 (citations omitted). Disqualification of a judge for actual bias or prejudice is a serious matter and should only be required when the evidence is compelling. Fero v. Kerby, 39 F.3d 1462, 1478 (10th Cir.1994), petition for cert. filed, (U.S. Jan. 26, 1995) (No. 94-7904).

In addition, there are cases where "`experience teaches that the probability of actual prejudice on the part of the judge or decision-maker is too high to be constitutionally tolerable.'" Dyas, 705 F.2d at 996 (quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975)). Examples of such lessons include where the judge has a pecuniary interest in the outcome of a trial or where the judge has been the target of personal abuse or criticism from the party before him. Id. "The test in determining if a judge's bias should be presumed in a particular case is whether, realistically considering psychological tendencies and human weaknesses, the judge would be...