Sloan v. Delo

Decision Date02 August 1995
Docket NumberNo. 94-2122,94-2122
Citation54 F.3d 1371
PartiesJeffrey Paul SLOAN, Plaintiff-Appellant, v. Paul DELO, Superintendent, Defendant-Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Douglas S. Laird, Kansas City, Missouri, argued, for appellant.

Michael Joseph Spillane, Asst. Atty. Gen., argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, BRIGHT, Senior Circuit Judge, and MURPHY, Circuit Judge.

DIANA E. MURPHY, Circuit Judge.

Jeffrey Paul Sloan appeals from orders of the district court 1 denying his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254 and his motion to alter or amend the judgment. After Sloan was charged with the murder of his parents and two brothers, he was tried for the murder of his younger brother. He was convicted and sentenced to death. On appeal Sloan reasserts most of the claims rejected by the district court. We affirm.

I.

The facts of the murders, and Sloan's role in them, are not in dispute and have been set out in detail by the Missouri Supreme Court. State v. Sloan, 756 S.W.2d 503 (Mo.1988) (en banc) (Sloan I ), cert. denied, 489 U.S. 1040, 109 S.Ct. 1174, 103 L.Ed.2d 236 (1989).

On December 11, 1985, Sloan, then nineteen, went into his parents' bedroom and shot them both while they slept. He then went to the living room and shot both of his brothers, first eighteen-year-old Timothy and then nine-year-old Jason. Timothy was shot as he attempted to rise from his bed, and Jason as he huddled beneath a blanket with which he had covered himself. Petitioner reloaded and returned to his parents' room and shot each of them again. Timothy, wounded but still alive, tried to escape out the front door, but petitioner shot him again and left his body lying in the front yard.

After the killings, Sloan went to work, where he called his girlfriend and asked her to go to his home and deliver a message to his father. His girlfriend and her mother discovered Timothy's body and contacted the authorities. The girlfriend's mother also called Sloan at work to tell him of the tragedy. He returned home and was taken to the county courthouse for questioning. Although he initially accused a man who had had an affair with his mother, Sloan confessed to the murders within hours. He gave two videotaped statements and led the authorities to the discarded weapon.

The state charged Sloan with four counts of murder but later elected to try him only for the murder of Jason Sloan. The state requested the death penalty, and Sloan pleaded not guilty by reason of mental disease or defect. During the January 1987 trial, the state presented evidence that Sloan had killed the family after his father had discovered he was writing checks on his father's account without permission. Sloan did not testify, but his two videotaped statements were played. In them, Sloan stated that his father had physically abused his mother and the two older boys. Sloan also claimed that his mother had urged him repeatedly to kill the entire family: the father to stop his abuse, the mother because she thought she was dying of cancer, Timothy because she believed he was destined to become abusive, and Jason to spare him the pain of coming from an abusive household. Petitioner's psychological expert testified that Sloan was suffering from double insanity and that he was under the control of his mother at the time of the killings. Sloan's defense was based on this mental disease or defect, and he argued at trial that he was not legally responsible for his actions. The state did not call a psychological expert, but reports by two doctors were admitted without objection by the defense. Both concluded that Sloan was not suffering from a mental disease or defect. After more than three days of testimony during the guilt phase of the trial, the jury found Sloan guilty of first degree murder.

At the penalty phase, the state presented no new evidence, and Sloan's attorney called only two witnesses. Both were Sloan's paternal aunts, one his father's sister and the other his father's sister-in-law. Neither corroborated Sloan's claims that his father was abusive or that his mother had urged him to kill the family. After six hours of deliberation, the jury found two aggravating circumstances: depravity of mind and commission of a killing while engaged in another unlawful homicide. It found none of the five mitigating circumstances on which it had been instructed. The jury returned a verdict of death on January 30, 1987. Sloan then filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial. The judge denied the motion after a hearing on April 3, 1987, and sentenced Sloan to death.

Sloan appealed directly to the Missouri Supreme Court, which affirmed the conviction and sentence on July 26, 1988. Sloan I, 756 S.W.2d 503. Sloan also sought state post conviction relief under Missouri Supreme Court Rule 29.15. He filed an original and three amended motions under the rule. The first was filed pro se. Appointed counsel prepared the three amended motions, but the last two were submitted after the August 26, 1988 deadline set by the court. In establishing that date, the court had already granted the one thirty day extension permissible under the rule. After an evidentiary hearing, the circuit court of Clay County overruled all of Sloan's claims, including those in the final two motions, on December 19, 1988.

Sloan appealed the denial of post conviction relief to the Missouri Supreme Court, which rejected his claims on November 14, 1989. It affirmed on the merits as to the original and first amended motions. It also affirmed as to the second and third amended motions, finding all claims in them were procedurally barred because the motions were untimely. The second amended petition was also barred because it was unverified. Sloan v. State, 779 S.W.2d 580 (Mo.1989) (en banc) (Sloan II ), cert. denied, 494 U.S. 1060, 110 S.Ct. 1537, 108 L.Ed.2d 776 (1990).

Sloan then filed a petition for a writ of habeas corpus in federal district court on April 3, 1990 and received a stay of execution the same day. 2 He amended the petition on July 13, 1990 and then again eighteen months later, ultimately alleging seventeen claims for relief. The district court denied Sloan's second amended petition in July 1993. Sloan v. Delo, No. 90-0324-CV-W-2, (W.D.Mo. July 21, 1993). Sloan then moved to alter or amend the judgment under Rule 59(e). In the motion, Sloan renewed his request for an evidentiary hearing, claiming that he could present witnesses who would have testified at trial if called. These people allegedly would have corroborated Sloan's descriptions of his father's abuse and of his mother's depression and influence. His motion was denied by the district court on March 14, 1994.

Sloan now appeals in some form most of the claims he raised in the district court. The claims may be summarized as follows: eight claims of ineffective assistance of counsel, several of which involve his lawyer's alleged failure to investigate and present mitigating evidence; an eighth amendment claim related to a vague jury instruction on the depravity of mind aggravating circumstance; a due process claim that he was forced to use peremptory strikes to exclude three prospective jurors who should have been stricken for cause; and eighth and fourteenth amendment claims challenging a jury instruction on mitigating circumstances and the prosecutor's closing argument in the penalty phase. To overcome procedural default of several of these claims, Sloan argues that the state ground of decision was inadequate because of overly restrictive deadlines for the state post conviction process.

II.

Eight of Sloan's claims allege that his attorney did not provide effective assistance of counsel. Under the sixth amendment, competent representation is an important right at trial, helping to insure the reliability of criminal proceedings. Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984). An individual may be entitled to habeas relief where he can demonstrate that counsel's performance was deficient and that it prejudiced the outcome. Id. at 695, 700, 104 S.Ct. at 2068, 2071. If a state court finds that a defendant defaulted a claim under a state procedural rule, however, federal courts generally will not consider it on habeas review. A default under a state procedural rule bars consideration of a federal claim presented to the state courts if the last state court to review the claim specifically rested its decision on an adequate and independent state ground unless the petitioner can demonstrate either cause and prejudice, or a "fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 260-63, 109 S.Ct. 1038, 1042-44, 103 L.Ed.2d 308 (1989). A federal court also will not hear a claim if the petitioner has not exhausted all available state remedies unless further litigation in the state courts would be futile or unless the state waives this requirement under certain circumstances. 28 U.S.C. Sec. 2254(b); see Duvall v. Purkett, 15 F.3d 745 (8th Cir.1994). Some of Sloan's claims fail because they were not properly presented to the state courts, others because he cannot show deficient performance and prejudice.

A.

Sloan first raised two of his ineffective assistance of counsel claims in his third amended motion for state post conviction relief under Missouri Supreme Court Rule 29.15. Sloan argued that he was denied effective assistance of counsel because his trial lawyer failed adequately to investigate potential mitigating evidence. He asserts that several witnesses would have testified if called about the extent of his mother's influence over him, about her depression, and about his father's abusiveness. Sloan also claimed in that motion his counsel was ineffective for not objecting to...

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