Stokes v. Armontrout, 89-1103

• Decision Date: 28 December 1989
• Docket Number: No. 89-1103,89-1103
• Citation: 893 F.2d 152
• Parties: Winfred STOKES, Appellant, v. William ARMONTROUT, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 152

893 F.2d 152

Winfred STOKES, Appellant, v. William ARMONTROUT, Appellee.

No. 89-1103.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 11, 1989.

Decided Dec. 28, 1989.

Richard H. Sindel, Clayton, Mo., for appellant.

Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before McMILLIAN, ARNOLD, and BOWMAN, Circuit Judges.

ARNOLD, Circuit Judge.

Winfred Stokes is under sentence of death in the Missouri State Penitentiary for the 1978 murder of Pamela Benda. He petitioned the District Court ¹ for a writ of habeas corpus under 28 U.S.C. Sec. 2254. This was his second petition, the first having been denied. ² Stokes now alleged constitutional errors in the instructions guiding the jury during the sentencing phase of his trial. The District Court again denied relief, holding that the instructions passed constitutional muster. Stokes v. Armontrout, No. 88-1809C(6), slip op. (E.D.Mo. Jan. 13, 1989). The District Court also refused to grant Stokes a certificate of probable cause so that he could press an appeal of that Court's decision. Judge Gunn found that any appeal would be frivolous because the law governing Stokes's claims was "not susceptible to debate." Stokes, No. 88-1809C(6), slip op. at 5. Upon petitioner's motion, however, this Court issued such a certificate--limited to one issue: Stokes's challenge to the jury instructions under Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). Mills governs the jury's consideration of mitigating factors in the sentencing phase of a death-penalty case, and condemns an instruction that leaves a reasonable juror with the impression that a mitigating circumstance may not be considered unless the jurors first unanimously find that it exists.

Because Stokes failed to raise his Mills claim before the Missouri state courts, and because the record reveals no justification for that failure, we hold that he is precluded from urging the point now. The District Court's judgment dismissing Stokes's petition is therefore affirmed. Stokes's procedural default bars him from raising his Mills claim in a federal habeas corpus proceeding. When the rehearing process in this Court has run its course, and if rehearing is denied, the stay of execution previously entered, Stokes v. Armontrout, No. 89-1103 (8th Cir. Jan. 23, 1989) (order), will be dissolved.

I.

When a criminal defendant failed to raise a constitutional claim in the state courts, and because of a state procedural rule is now precluded from doing so, federal habeas corpus review of the merits of the claim is barred, subject to certain exceptions. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Here, Stokes does not allege that his Mills claim was ever presented to the Missouri courts, or that there is any available state procedure for raising it now. Rather he argues his claim under the novelty-cause and probable-innocence exceptions to the general procedural-bar rule. We shall address those arguments in due course.

We begin by describing the procedural history of this case in the state courts. In October 1979 Stokes was convicted of capital murder by a jury in the Circuit Court of St. Louis County. He was sentenced to death. At trial Stokes specifically objected to only one of the jury instructions: No. 5, regarding capital murder. He also made a general objection to the instructions as a whole. T. 295-96. In his motion for a new trial Stokes objected to two jury instructions. But neither of these instructions (No. 5, on capital murder, and No. 19, on the aggravating circumstance of profiting from the murder) deals with the procedure for considering mitigating circumstances.

Stokes appealed, alleging multiple constitutional errors in his trial. More particularly, he alleged: (1) that the State's late endorsement of witnesses, late notice of statutory aggravating circumstances, and pursuit of the death penalty after a broken plea bargain violated his right to due process; (2) that use of a death-qualified jury and application of a Missouri statute subjecting extenuating, mitigating, and aggravating evidence to the rules of evidence denied his Sixth Amendment right to a fair and impartial jury; and (3) that the Missouri statutory scheme for consideration and assessment of the death penalty violated the Eighth and Fourteenth Amendments. Stokes did not renew the jury-instruction challenges made in his new-trial motion. Instead, he challenged Instruction No. 21--the instruction underlying his current petition before this Court. ³ Stokes's challenge, however, was not a Mills-type objection. He did not question the impact a mistaken unanimity requirement might have had on the consideration of mitigating circumstances; he urged the instruction's ambiguity because it did not "adequately define statutory aggravating circumstances [or] adequately explain mitigating circumstances." Appellant's Statement, Brief and Argument on Direct Appeal 9. The substance of Stokes's argument on this point is likewise bereft of any indication he had, or intended to raise, Mills-type concerns. ⁴

The Missouri Supreme Court rejected each of Stokes's constitutional challenges to his trial and sentence. State v. Stokes, 638 S.W.2d 715 (1982) (en banc), cert. denied, 460 U.S. 1017, 103 S.Ct. 1263, 75 L.Ed.2d 488 (1983). The Court held that the petitioner had received due process, that his trial was fair, and that Missouri's statutory scheme for the death penalty satisfied constitutional standards. Stokes, 638 S.W.2d at 720-22, 724. Relying on three of its recent cases, the Court summarily rejected Stokes's vagueness attack on Instruction No. 21, along with all his general challenges to Missouri's "statutory scheme for consideration of and assessment of the death penalty...." Stokes, 638 S.W.2d at 724. Justice Seiler's dissent, joined by one other Justice, specifically reserved judgment on whether one of Missouri's statutory aggravating circumstances was unconstitutionally vague. He noted that Stokes had argued the point, though the Court implicitly declined to rule on it. Id. at 725-26. The dissent, however, like the Court's opinion, did not discuss at any length Stokes's vagueness challenge to Instruction No. 21's provisions about mitigating circumstances.

Following his unsuccessful direct appeal, Stokes collaterally challenged his conviction by filing a Rule 27.26 motion. ⁵ This provision of the Missouri Supreme Court Rules was the substantial equivalent of a state habeas corpus proceeding. ⁶ The trial court denied his motion after an evidentiary hearing. Stokes again appealed. He contended that the Rule 27.26 trial court erred in three respects: in upholding his conviction and death sentence, even though he was forced to trial when his plea bargain collapsed because of ineffective assistance of counsel; in not finding a speedy-trial violation when he was arraigned one year and thirty-one days after his indictment was filed; and in not finding he was generally denied effective assistance of counsel. An important aspect of Stokes's ineffective-assistance claim was his lawyer's failure to offer a jury instruction on the lesser included offense of first-degree murder.

The Missouri Court of Appeals affirmed the Rule 27.26 trial court on each ground. Stokes v. State, 688 S.W.2d 19 (Mo.App.1985). The Court held that Stokes's counsel was effective under the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standard during plea negotiations and during the sentencing phase of his trial. Stokes, 688 S.W.2d at 22-24. The Court further held, applying the analysis of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), that the sixteen-month delay between indictment and trial did not deny Stokes's speedy trial right. Stokes, 688 S.W.2d at 23. The Court did not consider the instruction about mitigating circumstances. Stokes neither raised the instruction's constitutionality in his Rule 27.26 motion nor asserted it as a new ground of objection in his appeal.

Stokes also moved the Missouri Supreme Court to recall its mandate in his direct appeal. Among numerous other points, he argued only one aspect of his jury instructions: the failure of either his trial counsel or the trial court to offer an instruction on the offense of felony murder. The Missouri Supreme Court denied his motion without an opinion. State v. Stokes, No. 61963 (Mo.Sup.Ct. Sept. 11, 1984) (order). After these Missouri court proceedings, Stokes petitioned the federal courts for habeas corpus relief. His first petition did not raise a Mills-type claim. Rather, Stokes renewed the severalty of arguments he made in his Rule 27.26 proceeding. This Court affirmed the District Court's denial of his petition on each asserted ground. Stokes v. Armontrout, 851 F.2d 1085 (8th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 823, 102 L.Ed.2d 812 (1989).

II.

Stokes now claims that Instruction No. 21 violates the precepts of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). Instruction No. 21 is allegedly impermissible because it requires--or could be read by a reasonable juror to require--that jurors must unanimously find each particular mitigating circumstance before weighing that circumstance in the sentencing balance. We are precluded from reaching the merits of Stokes's claim. True to his admission, our study of the five state-court proceedings reviewing his conviction reveals that Stokes's Mills-type instruction claim was not raised at any time in the state courts. State procedural law would now bar Stokes from raising this issue in the state courts, and this bar would unquestionably be an adequate and independent state ground barring direct review by the Supreme Court of the United States. We hold that federal habeas review of this claim is also barred.

Stokes can overcome Missouri's procedural bar in either of two ways: by...