Whitehead v. Dormire

• Decision Date: 14 August 2003
• Docket Number: No. 02-3967.,02-3967.
• Citation: 340 F.3d 532
• Parties: Mark D. WHITEHEAD, Petitioner-Appellant, v. David DORMIRE, Superintendent JCCC, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

340 F.3d 532

Mark D. WHITEHEAD, Petitioner-Appellant, v. David DORMIRE, Superintendent JCCC, Respondent-Appellee.

No. 02-3967.

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2003.

Filed: August 14, 2003.

Order Denying Petition for Rehearing and for Rehearing En Banc October 6, 2003. Order Denying Petition for Rehearing and for Rehearing En Banc October 9, 2003^*. Corrected Order October 9, 2003.

The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied.

CORRECTED ORDER

This order corrects the order denying a petition for rehearing en banc, dated October 6, 2003, by adding "Judge Steven M. Colloton took no part in the denial of the rehearing petition".

The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied. Judge Steven M. Colloton took no part in the denial of the rehearing petition.

Michael J. Gorla of St. Louis, MO, argued, for appellant.

Andrew W. Hassell, argued, Jefferson City, MO (Jeremiah W. (Jay) Nixon, on the brief), for appellee.

Before MELLOY, BEAM, and SMITH, Circuit Judges.

MELLOY, Circuit Judge.

State prisoner Mark D. Whitehead appeals the district court's¹ denial of his petition for habeas corpus relief. He alleges that his second degree murder conviction violated his Fourteenth Amendment due process rights because the evidence at trial was insufficient to prove that he acted "purposely" when he shot his girlfriend. He also alleges violation of his Sixth Amendment right to effective assistance of counsel based on defense counsel's failure to retain a firearms/crime scene reconstruction expert to support Whitehead's accidental shooting claim. The district court rejected Whitehead's claims under the deferential standards of 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1218. We affirm.

I.

Following a jury trial in the Circuit Court of the County of St. Louis, Missouri, Mark D. Whitehead was convicted of one count of murder in the second degree, Mo. Stat. Ann. § 565.021, and one count of armed criminal action, Mo. Stat. Ann. § 571.015. The trial court sentenced Whitehead to thirty years on each count, to be served concurrently. Whitehead appealed his conviction and sentence, claiming that the evidence was insufficient to support a jury finding that he purposely shot his girlfriend.² The Missouri Court of Appeals denied relief in an unpublished summary ruling dated February 18, 1997. Missouri v. Whitehead, 938 S.W.2d 666 (Mo.Ct.App.1997).

Whitehead also filed a motion in state court for post-conviction relief, arguing that his trial counsel was ineffective for failing to retain a firearms/crime reconstruction expert. The trial court denied Whitehead's motion. The Missouri Court of Appeals again denied relief in an unpublished opinion. Whitehead v. Missouri, 964 S.W.2d 465 (Mo.Ct.App.1998).³ In a memorandum opinion accompanying its ruling, the court of appeals found the following facts:

Movant lived with his girlfriend, Judy Rotkosky (Victim), in a small apartment in St. Louis County. Victim's twin brother, Jack Rotkosky, and his girlfriend, Mary Beth Taylor, also lived in the apartment. On January 25, 1995, Movant came home from work at approximately 3:00 a.m. Jack Rotkosky and Taylor were already in bed in their bedroom. Victim accused Movant of cheating and they discussed it for about one hour. They eventually undressed and went to bed. At this time, Victim asked Movant to go out and get some cigarettes, and Movant refused. Finally Victim got up, dressed and went to a nearby Citgo to purchase cigarettes.

After Victim left, Movant got up and dressed. He then retrieved his semiautomatic rifle from his closet and loaded three shells into it. He chambered a round and held the rifle with his finger on the trigger. When Victim returned, Movant shot her. Taylor, in the next bedroom, was jolted from her sleep. She heard Victim say, "Mark, I can't breathe." Taylor jumped up and went to Victim's bedroom. She opened the bedroom door and found Victim right by the door, holding onto her throat. Movant was at the other end of the room, standing in front of the TV tray next to the wall by the bed, holding a rifle. Victim walked out of the bedroom and fell to her knees in the living room. Jack Rotkosky came out of his bedroom and saw Victim on the floor. Movant told him that he shot her. When Rotkosky asked him what he meant, Movant got in Rotkosky's face and angrily said, "I shot her, God damn it, I shot her." When Movant went over to Victim, she pushed him away. Victim later died from the gunshot wound to her neck. When the police arrived, Movant told Officer Biesiada that he was showing [Victim] the gun and it went off. Biesiada secured the rifle, which was leaning against a pile of clothing across from the bed. The police also retrieved a spent rifle casing on the bed and a live round under the covers. Movant was arrested and advised of his rights. At trial, Detective Wild testified that he interviewed Movant at the police station the day of the shooting. Movant told Detective Wild that he loaded the rifle and chambered a round, planning to scare Victim. Movant said that he was standing at the foot of the bed between the door and bed, holding the rifle when Victim entered the room. He claimed Victim pushed him by putting both hands against his chest, knocked him off balance, and he fell backwards onto his buttocks at the foot of the bed. He said that Victim was at the foot of the bed when the gun accidentally discharged. At first, Movant consistently maintained that he was at the foot of the bed when the incident happened. However, when confronted with physical evidence of the crime, he later said he may have been confused about where he was standing.⁴ Movant's defense at trial was that he accidentally shot Victim. He testified that he loaded the rifle because he planned to scare Victim by telling her that he was going to kill himself. When Victim returned, she came into the bedroom. Movant testified at trial that when Victim came into the bedroom, he was standing directly in front of the bed at the foot of the bed toward the corner. He held the gun across his chest. When Movant told her [he] planned to kill himself, she came toward him, pushing him with both hands across the top of his chest. He fell onto the lower part of the bed and landed flat on his back and buttocks. The gun discharged. He immediately jumped up and grabbed Victim and helped her into the living room.

Memorandum Supplementing Order of Feb. 17, 1998, at 2-4.

After exhausting state remedies, Whitehead petitioned for federal habeas relief. The district court denied the petition but granted a certificate of appealability on Whitehead's sufficiency challenge and ineffective assistance claim.

II.

"In the habeas setting, a federal court is bound by the AEDPA to exercise only limited and deferential review of underlying state court decisions." Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir.2003); see also 28 U.S.C. § 2254. In the interests of finality and federalism,

[t]he Antiterrorism and Effective Death Penalty Act (AEDPA) mandates that habeas relief "shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless" the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)

Robinson v. Crist, 278 F.3d 862, 865 (8th Cir.2002).

A state court decision is contrary to clearly established Supreme Court precedent if "the state court arrives at a conclusion opposite to that reached by [the] Court on a question of law or ... decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision involves an unreasonable application of clearly established Supreme Court precedent "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. Finally, a state court decision involves "an unreasonable determination of the facts in light of the evidence presented in state court proceedings," 28 U.S.C. § 2254(d)(2), only if it is shown by clear and convincing evidence that the state court's presumptively correct factual findings do not enjoy support in the record. 28 U.S.C. § 2254(e)(1).

A. Fourteenth Amendment due process

In his due process challenge, Whitehead asserts that no rational jury could have found that he acted "with the purpose of causing serious physical injury," as required for second degree murder, Mo. Stat. Ann. § 565.021. See Jackson v. Virginia, 443 U.S. 307, 320-21, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (holding that sufficiency challenges are cognizable in a federal habeas proceeding). In Jackson, the Supreme Court clarified the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction: "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319 (emphasis in original). "In applying this standard, `[t]he scope of our review ... is extremely limited.... We must presume that the trier of fact resolved all conflicting inferences in the record in favor of the state, and we must defer to that resolution.'" Sexton v. Kemna, 278 F.3d 808, 814 (8th Cir.2002) (quoting Miller v. Leapley, 34 F.3d 582, 585 (8th Cir.1994)).

The district court found that Whitehead had not presented...