Washington v. Delo

• Citation: 51 F.3d 756
• Decision Date: 06 April 1995
• Docket Number: No. 94-2445,94-2445
• Parties: James WASHINGTON, Jr., Petitioner-Appellant, v. Paul K. DELO, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 756

51 F.3d 756

James WASHINGTON, Jr., Petitioner-Appellant, v. Paul K. DELO, Defendant-Appellee.

No. 94-2445.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 11, 1995.

Argued April 6, 1995.

Stephen E. Rothenberg, St. Louis, MO, argued, for appellant.

Stacy L. Anderson, Jefferson City, MO, argued, for appellee.

Before BEAM, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and WILL, ^* Senior District Judge.

WILL, Senior District Judge

Petitioner James Washington was convicted by a jury of capital murder in 1983 for the killing of Leroy Reason and is currently serving a life sentence. Following his trial in the Circuit Court of St. Louis County, Washington appealed to the Missouri Court of Appeals which affirmed his conviction. State v. Washington, 707 S.W.2d 463 (Mo.Ct.App.1986). Washington then filed a motion for post conviction relief which, after an evidentiary hearing, was denied by the state Circuit Court and affirmed by the Missouri Court of Appeals. Washington v. State, 772 S.W.2d 728 (Mo.Ct.App.1989). In 1990, Washington filed for and was denied federal habeas corpus relief. In 1993, he filed a second petition for a writ of habeas corpus. The district court concluded that Washington's second filing was successive and an abuse of the writ and denied his petition. Washington now appeals on the grounds that he has been denied the opportunity to prove his actual innocence which has resulted in a fundamental miscarriage of justice, or in the alternative, that the district court erred in failing to find sufficient cause and prejudice to overcome the procedural bar of his second petition and consider his claims on the merits. We reject these contentions and affirm the district court.

BACKGROUND

Leroy Reason was murdered in his home on the evening of April 24, 1982. The exact time of the killing was never conclusively established, although it is alleged to have been sometime around dusk, between 6:30 and 8:00 p.m.

At trial, the details of which are more fully recounted at 707 S.W.2d 463, several witnesses testified that Washington was at the scene of the crime on the night in question. Maurice Hudson, a neighbor of the victim, testified that at around 6:00 or 6:30 on the evening of April 24, he saw and greeted a man walking near Reason's house who he later identified to be Washington. Hudson stated that a short time after this initial greeting, he and a friend, Jeff Dickens, who had joined Hudson on his front porch to smoke a marijuana cigarette, saw Washington walk up to the front door of Reason's house and knock. Both Dickens and Hudson testified that soon thereafter, they heard a commotion and popping noises emanate from Reason's home and then saw Washington leave the house and get into the passenger side of a gray Lincoln Continental. Hudson further identified the gray Continental that he saw as being owned by Carol Reason, the victim's wife, and testified that he saw Carol in the driver's seat when Washington entered the car. Finally, Hudson testified that he observed Carol Reason return home about Other evidence supported the state's theory that Carol Reason had hired Washington to kill her husband. For example, Beverly Stricker, an acquaintance of Carol, testified that the night before the murder she had seen Carol talking to Washington at the bar that Carol owned and that the two had left together. Some weeks later Carol told Stricker that if anyone asked she should not mention that Carol had taken Washington home that night. It was also revealed that Leroy had informed Carol that he intended to divorce her, that the two had become involved in bitter disputes concerning that prospect, and that at one point Carol had told her sister that she was willing to "play dirty" if necessary. Bank records also showed that in the weeks proceeding the murder, Carol had withdrawn large amounts of cash from the bank account used for her bar, had closed an account that was listed under both her and her husband's name, and then deposited those funds into a new account opened with her daughter.

forty-five minutes later, at which time she discovered the body of her husband, fatally shot.

Washington denied any involvement with Carol or with Leroy Reason's murder, and claimed that he was somewhere else when it occurred. In support of this alibi, two of Washington's friends testified that he was with them at various times on the evening of April 24, 1982. Specifically, Sullivan Chaffen testified that Washington was at his house around 7:30 to 8:00 p.m. on the evening of the murder, and Rachel Brown stated that she was also at Chaffen's house with Washington that evening.

DISCUSSION

This appeal concerns Washington's second federal habeas corpus petition which he filed on April 7, 1993. In that petition Washington asserted the following five grounds for relief:

1. trial court error in admitting into evidence hearsay testimony of Beverly Stricker over petitioner's objection;

2. trial court error in denying petitioner's motion to suppress the identification testimony of Maurice Hudson and Jeff Dickens;

3. trial court error in admitting testimony of bank officials concerning Carol Reason and the Little Bits Bar;

4. ineffective assistance of counsel for not raising a Batson objection; and

5. ineffective assistance of counsel for not properly cross-examining Dr. Ronald P. Turgeon as to the exact time of the victim's death.

The district court reviewed these claims and dismissed the first four as an abuse of the writ and the fifth as successive. Washington now appeals claiming that he has been denied the opportunity to establish his actual innocence, resulting in a fundamental miscarriage of justice. Alternatively, he argues that the district court erred in not finding sufficient cause and prejudice to overcome the procedural bars to his second petition and allow his five claims to be addressed on their merits.

Subsequent to the filing of his briefs in support of this appeal, but before oral argument, Washington moved this court for permission to file two affidavits as additional exhibits. In the interest of full information, and despite their untimely submission, we grant this motion.

For clarity, we will first address Washington's cause and prejudice argument, and then turn to his claim of a fundamental miscarriage of justice.

A. Cause and Prejudice

To begin, we note that federal courts are often barred from considering the merits of claims raised in a second or subsequent federal habeas petition. Shaw v. Delo, 971 F.2d 181, 184 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1301, 122 L.Ed.2d 690 (1993). More specifically, claims in a later petition are properly dismissed either as successive, if they have been heard and decided on the merits in a previous petition, or as an abuse of the writ, if they were not previously raised but should have been. Sawyer v. Whitley, 505 U.S. ----, ----, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992) (citations omitted). These procedural Dismissal of successive or potentially abusive habeas claims, however, is not automatic. If a petitioner can show cause for the failure to raise or fully develop his or her claims, and prejudice arising therefrom, a district court may consider the merits of these claims. McCleskey, 499 U.S. at 493-94, 111 S.Ct. at 1469-70; Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In order to show the requisite cause and prejudice, a petitioner must generally show that some external impediment, such as "government interference or the reasonable unavailability of the factual basis for the claim," prevented him from raising his claims in his prior petition, and that this obstacle caused actual prejudice. McCleskey, 499 U.S. at 497, 111 S.Ct. at 1471-72.

roadblocks are derived from the court's equitable powers as well as the statutory authority of 28 U.S.C. Secs. 2244(b), 2254 rule 9(b), and are premised upon concerns for finality and judicial economy. McCleskey v. Zant, 499 U.S. 467, 479-90, 111 S.Ct. 1454, 1462-68, 113 L.Ed.2d 517 (1991).

In this appeal, Washington does not dispute that his first four habeas claims are new and that his fifth is repetitive. Rather, he argues that he has shown sufficient cause and prejudice to overcome these procedural bars. Specifically, he asserts that ineffective assistance of trial and post-conviction counsel prevented his first four claims from being presented and his fifth claim from being fully developed until his second federal habeas petition.

Unfortunately for Washington, his claim of attorney error provides insufficient cause in this context as a matter of law. As explained by the Supreme Court, ineffective assistance of counsel can represent sufficient cause only when it rises to the level of an independent constitutional violation. Coleman v. Thompson, 501 U.S. 722, 755, 111 S.Ct. 2546, 2567-68, 115 L.Ed.2d 640 (1991). By definition, such a violation could not have occurred here because there is no sixth amendment right to counsel in federal habeas proceedings. Harris v. Vasquez, 949 F.2d 1497, 1513-14 (9th Cir.1990), cert. denied, 503 U.S. 910, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992); Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987). Therefore, as recently reiterated by this circuit, the failure of petitioner's first habeas counsel cannot constitute cause sufficient to overcome the successive and abusive nature of his subsequent petition. Shaw, 971 F.2d at 184.

Washington's claim that he had ineffective assistance of counsel prior to his first federal habeas appeal does not change the result here. Earlier attorney error, even if constitutional in scope, cannot constitute cause for his failure to...