Taylor v. Bowersox

• Citation: 329 F.3d 963
• Decision Date: 07 May 2003
• Docket Number: No. 01-2735.,01-2735.
• Parties: Michael Anthony TAYLOR, Appellant, v. Michael S. BOWERSOX, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

329 F.3d 963

Michael Anthony TAYLOR, Appellant, v. Michael S. BOWERSOX, Appellee.

No. 01-2735.

United States Court of Appeals, Eighth Circuit.

Submitted: November 4, 2002.

Filed: May 7, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John W. Simon, argued, Clayton, MO (Mark A. Thornhill, Kansas City, MO, on the brief), for appellant.

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

Before HANSEN,¹ Chief Judge, BEAM and RILEY, Circuit Judges.

BEAM, Circuit Judge.

Michael Anthony Taylor ("Taylor") appeals the district court's² denial of his petition for writ of habeas corpus. We affirm the result reached by the district court.

I. BACKGROUND

Taylor and Roderick Nunley kidnapped, raped, and killed fifteen-year-old Ann Harrison on March 22, 1989. The details of this horrific crime are discussed in State v. Taylor, 929 S.W.2d 209 (Mo.1996). As a result of these actions, Taylor pled guilty to first-degree murder, armed criminal action, kidnapping and rape on February 8, 1991, in front of Judge Alvin Randall. There was no plea bargain or agreement by the prosecutor not to recommend the death penalty. Following a sentencing hearing, Judge Randall sentenced Taylor to death for murder, life imprisonment for rape, fifteen years for kidnapping and ten years for armed criminal action.

Taylor brought his first post-conviction relief action ("PCR") under Missouri Supreme Court Rule 24.035, challenging his guilty plea and sentence, alleging, in relevant part, that Judge Randall had been drinking prior to the sentencing proceeding and that his plea was involuntary because his plea counsel had been ineffective. All of the judges in the Sixteenth Judicial Circuit were recused and the Missouri Supreme Court appointed Special Judge Robert Dierker, Jr. Judge Dierker held an evidentiary hearing and denied Taylor's PCR motion, including, specifically, Taylor's ineffective assistance of plea counsel claims. Taylor appealed to the Missouri Supreme Court,³ which vacated the judgment and remanded the case for a new penalty hearing without saying more.⁴ Taylor filed a motion to withdraw his guilty plea because he was no longer going to be sentenced by Judge Randall.⁵ His motion was denied. Judge H. Michael Coburn conducted the second sentencing procedure, which lasted five days, and Taylor again received a sentence of death.⁶

Taylor then filed a second pro se PCR motion,⁷ challenging his guilty plea, his second sentencing proceeding, and his sentence of death.⁸ Judge Edith Messina held an evidentiary hearing at which Taylor presented evidence on the issue of ineffective assistance of sentencing counsel for failing to investigate and present sufficient mitigating evidence. Taylor was not allowed to argue ineffective assistance of plea counsel in the second PCR motion because Judge Messina ruled that this issue had been raised and decided in Taylor's first PCR motion. Judge Messina denied Taylor's second PCR motion. Taylor appealed his conviction, his sentence, and the denial of his second PCR motion to the Supreme Court of Missouri, which affirmed.⁹ Taylor, 929 S.W.2d at 225. The United States Supreme Court denied discretionary review. Taylor v. Missouri, 519 U.S. 1152, 117 S.Ct. 1088, 137 L.Ed.2d 222 (1997).

Taylor then filed a petition for writ of habeas corpus and the district court denied the petition. Taylor moved to alter or amend judgment, which was also denied. Taylor filed a notice of appeal and an amended notice of appeal in this court. We issued a certificate of appealability on two issues: (1) whether the denial of Taylor's motion to withdraw his guilty plea because the plea judge and sentencing judge were not the same person violates his federal constitutional due process rights; and (2) whether the district court erred in ruling that Taylor's ineffective assistance of plea counsel claim was procedurally defaulted.

II. DISCUSSION

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we apply a deferential standard of review to state court resolutions of law and fact only if the state court adjudicated the prisoner's claim on its merits. 28 U.S.C. § 2254(d); Kenley v. Bowersox, 275 F.3d 709, 711 (8th Cir.2002). Here, the state court did not adjudicate Taylor's claims on their merits and, therefore, section 2254(d) does not apply. See Haley v. Cockrell, 306 F.3d 257, 263 (5th Cir.2002). We review the district court's findings of fact for clear error and its legal conclusions de novo. Id.

A.

Taylor argues that he was denied due process when he was not allowed to rescind his guilty plea before the second sentencing hearing. Generally, when a defendant pleads to a charge in reliance on a promise or agreement by the prosecutor, that promise must be fulfilled or else the defendant may withdraw his plea. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Some courts have even found an implied promise in plea agreements that the judge accepting the plea will be the sentencing judge. People v. Arbuckle, 22 Cal.3d 749, 150 Cal.Rptr. 778, 587 P.2d 220, 224-25 (1978); People v. DeJesus, 110 Cal.App.3d 413, 168 Cal.Rptr. 8, 11 (1980).¹⁰ However, upon complete review of the record in this case, we fail to see any evidence that a promise was made by the court or by the prosecutor that Taylor would be sentenced by Judge Randall. Therefore, Taylor's reliance on Santobello, as well as on Arbuckle and its progeny, is misplaced. While it may be true that Taylor and his counsel thought it advantageous to enter a plea in front of Judge Randall, this action did not arise from an agreement of any kind. Nor was it conditioned on the availability of Judge Randall as the sentencing judge or on any promise that Taylor would be sentenced by that particular jurist. Without a bargained-for exchange, evidenced by a plea agreement or, at least, some explicit negotiation, the state need not honor, under Santobello, a defendant's unilateral expectation.

Taylor also argues that, even if the United States Constitution does not directly require Missouri to give a defendant the right to be sentenced by a particular judge, Missouri gave Taylor that right when its legislature enacted Mo.Rev. Stat. § 565.030.¹¹ This section says, in part, "[w]here murder in the first degree is submitted to the trier without a waiver of the death penalty, the trial shall proceed in two stages before the same trier." Mo.Rev.Stat. § 565.030.2. Taylor argues that this statute creates a "substantial and legitimate expectation" that he would be sentenced by the same judge that accepted his plea, and deviation from the statute violates a liberty interest protected by the due process clause of the United States Constitution. The Missouri Supreme Court has determined that, as a matter of Missouri law, an accused is not entitled to withdraw a guilty plea as a matter of right and that the determining factor is "whether the sentencing judge has the familiarity with the prior proceedings to make an informed ruling on sentencing." Taylor, 929 S.W.2d at 216. A state's interpretation of its own law is virtually unreviewable by a federal court. Toney v. Gammon, 79 F.3d 693, 699 (8th Cir.1996). However, we may review a state's law whatever it may prove to be, to determine whether a state has created a "substantial and legitimate sentencing expectation" and whether any "arbitrary deprivation" of that expectation amounts to an independent federal constitutional violation. Id. (internal quotations omitted).

While the Missouri Supreme Court has stated that an accused does not have the right to the same judge at the plea and sentencing stages, the court first made that statement in Taylor's appeal, after his right was allegedly violated. Taylor, 929 S.W.2d at 215-16. Therefore, we find it prudent to look to the statutory provision and to the status of Missouri case law at the time of Taylor's plea to determine if state law created a "substantial and legitimate" expectation. In State v. Tettamble, 450 S.W.2d 191, 193 (Mo.1970), the Missouri Supreme Court clearly held that a sentencing judge could replace a trial judge if the trial judge became unavailable and the sentencing judge became familiar with the proceedings. Additionally, we agree with the Missouri Supreme Court that while the statute codifies the desirability of having the same trial and sentencing judge, substitution of a new judge for sentencing does not "create manifest injustice." Taylor, 929 S.W.2d at 216. Thus we see no substantial and legitimate expectation under the statute that rises to the level of a federally protected interest.

Since Taylor has no state-created, federally-protected interest in having the same trial and sentencing judge, he must look directly to the language of the Constitution for due process relief. We agree with the district court that there is no independent federal right to be sentenced by the same judge that took a guilty plea and find no constitutional provision that guarantees such a right. Therefore, Taylor's due process claims must fail.

B.

Taylor also argues that the district court erred in ruling that he has procedurally defaulted his claim that his plea was involuntary because of ineffective assistance of counsel. In his first PCR motion, Taylor clearly raised this issue. Judge Dierker found that Taylor's plea counsel was not ineffective, but rather was thorough and professional. Taylor appealed this issue and others to the Missouri Supreme Court, which "vacated" Judge Dierker's judgment and "remanded for new penalty hearing, imposition of sentence, and entry of new judgment." The court made no mention of the ineffective assistance allegation. After a new sentence was imposed by Judge Coburn, Taylor again raised this claim in his second PCR motion. Judge Messina acknowledged Taylor's position that effectiveness of plea counsel remained in question, but she disagreed with this contention and...