Toney v. Gammon
| Decision Date | 29 March 1996 |
| Docket Number | No. 94-4030,94-4030 |
| Citation | 79 F.3d 693 |
| Parties | Steven L. TONEY, Appellant, v. James A. GAMMON; Jeremiah (Jay) W. Nixon, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Appeal from the United States District Court for the Eastern District of Missouri. Hon. Edward L. Filippine, U.S.D.C., Judge.
Rebecca S. Stith (argued), St. Louis, MO, for appellant.
Michael Joseph Spillane (argued), Jefferson City, MO, for appellee.
Before BOWMAN, ROSS and BEAM, Circuit Judges.
Steven L. Toney appeals from the district court's judgment denying his petition for writ of habeas corpus. We affirm in part and reverse in part.
Toney was convicted of the rape and sodomy of Kelly Eve Morris. Morris testified that on September 30, 1982, she arrived at her apartment complex about 3:00 a.m. and noticed a man on the stair landing. She testified that when she reached her apartment door she was grabbed from behind by a man who covered her mouth and nose with his hand and held a knife blade to her throat. The man dragged her down the stairs and outside to a wooded area behind the apartment building. She stated that she was able to see the man's face when they paused at a well-lit corner of the building. She was then sodomized and raped. Once back at her apartment, Morris called the police and later gave a description of her assailant as a Negro male, 25 to 30, 5'8" to 5'10", stocky, muscular build, dark complexion, wearing a white T-shirt, blue jeans and leather gloves.
On October 5, 1982, Morris viewed over sixty photographs of possible suspects but was unable to identify any of them as her assailant. On October 8, 1982, she was shown four photographs and from these identified one of them, a photograph of Toney, as the man who had assaulted her. During the trial, Lee Adams, an attendant at a gas station near the scene of the crime, recalled that at about 3:30 a.m. on the night of the assault, a man approached the pay booth of the gas station on foot. Adams gave a description to a police officer shortly afterward, stating that he was a Negro male, 22 to 30, 5'8" to 5'10", stocky build, bad, gaped teeth, short hair, a light mustache, wearing a white T-shirt, blue jeans and leather gloves. On October 14, 1982, two days after Toney was arrested, Adams was shown four photographs and from these identified Toney as the man he had seen at the gas station on the night of the crime. Toney has steadfastly maintained his innocence throughout his trial and postconviction proceedings. Toney points out that the descriptions given by both the victim and the gas attendant, while similar to each other, do not describe him with any accuracy. Toney was, in fact, 35 years old, 6' tall, 165 pounds, light-complected, pockmarked face, good teeth and a full beard and mustache.
Following his conviction, Toney filed a motion for a new trial and received an evidentiary hearing on claims raised in that motion. The motion was denied and Toney was sentenced as a persistent and dangerous offender to a term of life imprisonment on each of the two counts, to run consecutively. The Missouri Court of Appeals affirmed Toney's conviction and sentence. State v. Toney, 680 S.W.2d 268 (Mo.Ct.App.1984). Toney then sought postconviction relief under Missouri Supreme Court Rule 27.26, claiming ineffective assistance of counsel. The motion was initially denied without an evidentiary hearing. The Missouri Court of Appeals, however, reversed and remanded the case to the motion court for more detailed findings of fact and conclusions of law. Toney v. State, 730 S.W.2d 295 (Mo.Ct.App.1987). Toney's Rule 27.26 motion was again denied without an evidentiary hearing. Toney v. State, 770 S.W.2d 411 (Mo.Ct.App.1989).
Toney then filed a petition for habeas corpus in the United States District Court for the Eastern District of Missouri raising twenty-one grounds for reversal. The matter was referred to a magistrate judge who recommended denial of Toney's petition, as well as denial of his motion for appointment of counsel, denial of his motion for a DNA blood test and for scientific inspection of the physical evidence the state introduced at trial, and the denial of his motion for copies of deposition transcripts. Following consideration of Toney's pro se objections and in light of two recent Missouri cases, on July 15, 1991, the district court recommitted the petition to the magistrate judge for further consideration of Toney's third petition claim, specifically that the trial judge mistakenly imposed consecutive life sentences. The district court also granted Toney's request to file a motion to compel analysis of the blood sample and referred the motion to compel to the magistrate judge for consideration. On March 30, 1992, over eight months after the case was resubmitted, the magistrate judge denied Toney's motion to compel and his request for an evidentiary hearing without prejudice in a two-sentence order.
On September 4, 1992, the district court entered an order accepting the magistrate judge's denial of the petition only as to eleven of Toney's twenty-one claims, and recommitted the ten remaining claims, as well as various pending motions, to the magistrate judge for further consideration, holding that the present record supported sustaining Toney's motion for appointment of counsel and required further consideration of several issues pertaining to the analysis of evidence and blood samples, as well as the appropriateness of holding an evidentiary hearing to allow Toney a full opportunity to present his claims.
On March 24, 1994, over a year and a half after the remaining claims were resubmitted for further consideration, the magistrate judge recommended denial of Toney's remaining habeas claims and denial of his renewed motion to permit DNA testing. On October 15, 1994, the district court adopted the magistrate judge's recommendations and dismissed the petition with prejudice.
On appeal, Toney first argues the district court erred in denying his habeas petition without first conducting an evidentiary hearing. He claims he was denied a full and fair opportunity to present his claims where the state court and the district court denied his substantial claims of ineffective assistance and constitutional claims without an evidentiary hearing. 1
In order to prove such ineffective assistance of counsel, Toney must show that his attorney's performance was deficient and that such deficient performance prejudiced his defense. Sidebottom v. Delo, 46 F.3d 744, 752 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 144, 133 L.Ed.2d 90 (1995). Toney claims his trial counsel was ineffective in failing to: (1) highlight the lack of evidence linking Toney to the crime; (2) have the semen of the assailant blood-typed, which he claims would have excluded him as a suspect; (3) cross-examine the state's forensic expert on whether her testing protocol was generally accepted in the scientific community; and (4) insure that a probable cause hearing was held by the court. Toney claims his trial counsel was grossly ineffective in failing to develop a defense of mistaken identity, particularly in light of Toney's strong protestations of innocence, his demand for a blood test in order to exonerate himself, and the striking dissimilarity between the description of the assailant given by the victim and the gas attendant and Toney's physical characteristics. Toney contends that but for these errors, a "reasonable probability" existed that the jury would not have found him guilty beyond a reasonable doubt. See id.
In remanding the case to the magistrate judge, the district court stated that Toney's remaining claims appeared to raise substantial grounds:
The present record ... supports the granting of petitioner's motion for appointment of counsel and the denial without prejudice of the other two March, 1990, motions [motion for leave to compel analysis of victim's blood sample and request for an evidentiary hearing]. Various claims remain before the Court as the result of this and earlier orders, and several issues pertaining to the analysis of evidence and blood samples may need to be addressed more fully. While petitioner has shown an ability to present his positions, the issues still to be considered by the Court are relatively unusual and it is not clear that the state court record alone will resolve the pending issues.
* * *
[T]he magistrate judge may deem it appropriate to grant [petitioner's] requests, at least in part, so as to provide petitioner with a full opportunity to present his claims, particularly in light of the fact petitioner did not have an evidentiary hearing in his state postconviction proceedings.
(Emphasis added). Notwithstanding the district court's expressed concerns, the magistrate judge recommended denial of the petition and motion for DNA testing "without further proceedings."
The State claims Toney was not entitled to an evidentiary hearing in federal court because he received an evidentiary hearing in state court on his motion for a new trial and because the record itself was sufficient to clearly indicate his grounds were all without merit. Generally, a habeas petitioner is entitled to an evidentiary hearing in federal court if the petition "alleges sufficient grounds for release, relevant facts are in dispute, and the state courts did not hold a full and fair evidentiary hearing." Wilson v. Kemna, 12 F.3d 145, 146 (8th Cir.1994) (citations omitted). However, a petition may be summarily dismissed if the record clearly indicates that the petitioner's claims are either barred from review or without merit. Id.
The record in the present case does not conclusively establish that Toney's claims are either barred from review or without merit. Toney has raised substantial claims that his counsel provided ineffective assistance by failing to exhaustively pursue the issue of mistaken identity and...
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