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Maurice Oscar BYRD

 
 
 
 
 

 

 

 

   
 
 
Classification: Mass murderer
Characteristics: Robbery
Number of victims: 4
Date of murder: October 23, 1980
Date of birth: December 7, 1954
Victims profile: 3 female and 1 male (cafeteria employees)
Method of murder: Shooting
Location: St. Louis County, Missouri, USA
Status: Executed by lethal injection in Missouri on August 23, 1991
 
 
 
 
 
 

State of Missouri v. Maurice Oscar Byrd

Cite as 676 SW 2d 494 (Mo.banc 1984)

Maurice Oscar Byrd was executed on August 23, 1991

Case Facts: 

On October 23, 1980, employees arrived at the Pope’s Cafeteria in the West County Shopping Mall to discover that three employees had been killed and a fourth employee was still alive, although mortally wounded. She had been shot in each eye and died a little more than a week later. Over four thousand dollars had been taken from the office.

At the time of the murders, Maurice Byrd worked for an exterminating service and the cafeteria was one of his customers. On the morning of the killings, the bookkeeper for his employer arrived at work and noticed that Byrd was already there with another person, seated in a car that was different from the one normally driven by him.

Byrd began his route that morning in the company car but called in at 10 am to report that he was ill. He returned the company car to his employer and left for the day. Byrd never returned to work and made no attempt to pick up his final paycheck.

Byrd was convicted of four counts of capital murder and sentenced to death on each count.

 
 

917 F.2d 1037

Maurice Oscar BYRD, Appellant,
v.
Paul DELO, Superintendent, State Correctional Facility at Potosi, and
Attorney General of the State of Missouri, Appellees.

No. 90-1491.

United States Court of Appeals,
Eighth Circuit.

Submitted April 12, 1990.
Decided Oct. 19, 1990.
Rehearing Granted Oct. 26, 1990.

Before McMILLIAN, ARNOLD and BOWMAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Maurice Oscar Byrd, a Missouri death-row inmate, appeals an order of the United States District Court1 for the Eastern District of Missouri denying his second petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. Byrd v. Delo, 733 F.Supp. 1334 (E.D.Mo.1990). In the alternative, Byrd requests that his stay of execution be continued. For the reasons discussed below, we affirm the order of the district court and dissolve the stay of execution.2

I. HABEAS CORPUS

This is Byrd's second habeas petition. Byrd's claims fall into two broad categories: three claims which were considered and rejected by this court in Byrd's first action ("repetitive claims") and six claims which were not raised in Byrd's first petition ("new claims").

A. REPETITIVE CLAIMS

The court may reconsider habeas claims previously denied on the merits if the "ends of justice" so require. Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963) (Sanders). For instance, reconsideration is appropriate if the petitioner has shown "change in the law or some other justification for having failed to raise a crucial point or argument in the prior application," id. at 17, 83 S.Ct. at 1078, quoted in Williams v. Lockhart, 862 F.2d 155, 158 (8th Cir.1988), or if there are "new facts or legal developments warranting relitigation of the claim." Williams v. Lockhart, 862 F.2d at 158.

In addition, at least one panel of this Circuit has held that in order to relitigate repetitive claims, a petitioner must also make "a colorable showing of factual innocence." Williams v. Armontrout, 855 F.2d 578, 580 (8th Cir.1988), quoting Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986) (plurality); see also Mercer v. Armontrout, 864 F.2d 1429, 1434 (8th Cir.1988) (dictum). But cf. Wilson v. Lockhart, 892 F.2d 754, 756 (8th Cir.1990); Williams v. Lockhart, 862 F.2d at 158 (cases declining either to adopt or to reject "factual innocence" test). A requirement of "factual innocence" supplements rather than supplants the "new factual/legal issues" development. See Williams v. Lockhart, 862 F.2d at 157-58 ("factual innocence" requirement imposes "additional burden" on petitioners).

On appeal, Byrd has raised repetitive claims of ineffective assistance of counsel ("Ground E" in his habeas petition), racially biased jury selection ("Ground F") and denial of the right to offer evidence of mitigating circumstances ("Ground H"). Each of these arguments will be addressed in turn.

1. Ground E--Ineffective Assistance of Counsel

Ground E of Byrd's petition alleges that his trial counsel erroneously and unreasonably called Oscar Ford to testify on Byrd's behalf. Shortly after the murder, Ford stated that he had seen three black men, one of whom resembled a Mr. Kirksey, leave the location of the murders (a shopping center) in a yellow car. Before the trial, Ford recanted his earlier statements and stated that he had in fact seen Byrd at the shopping center. At trial, Ford again testified that he had seen Byrd at the time and place of the murders.

In our review of Byrd's first petition, we held that counsel had "a reasonable basis for the decision to call Oscar Ford." Byrd v. Armontrout, 880 F.2d 1 (8th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 1326, 108 L.Ed.2d 501 (1990). We held that counsel sought to introduce Byrd's original statement to the police implicating Kirksey in order to corroborate the testimony of Faraby Lombardo, who had testified:

that she had seen three black men in a yellow car in the neighborhood around 8:10 that morning. Such testimony would clearly be exculpatory, since the state's own case had included the testimony of a woman with whom Byrd worked that Byrd was already at work around 7:50 that morning.

Id. at 5. Thus, we concluded, it seemed reasonable "that counsel would decide to use Ford's testimony to establish the 'yellow car' defense." Id.

In the instant petition, Byrd argues that an intervening change in the law requires reconsideration of Ground E. In Harris v. Reed, 894 F.2d 871 (7th Cir.1990) (Harris ), the district court found that the failure of the petitioner's trial attorney to put on any evidence in his client's defense did not constitute ineffective assistance of counsel, because of the weakness of the petitioner's evidence.

The Seventh Circuit found that trial counsel "did not offer the strategic justifications provided by the district court," id. at 878, and accordingly reversed because "[j]ust as a reviewing court should not second guess the strategic decisions of counsel with the benefit of hindsight, it should also not construct strategic defenses which counsel does not offer." Id. In sum, Harris stands for the proposition that courts may not deny claims of ineffective assistance of counsel based on justifications created by the court rather than by counsel.

Byrd argues that Harris requires reconsideration of his claim because this court manufactured a "yellow car" defense which counsel did not offer or intend to offer. We disagree. The record shows that trial counsel said in his opening statement that "we'll introduce testimony from Mr. Ford about what his original description was. That he saw these individuals [none of whom was Byrd] leave in a yellow car." (Trial Transcript at 713.) In addition, trial counsel asked Ford about the "yellow car" theory at trial (Trial Transcript at 738) and discussed the yellow car in his closing statement (Trial Transcript at 941-42).

Furthermore, counsel's testimony at the state post-conviction relief hearing ("the 27.26 hearing")3 also addresses the "yellow car" defense. Counsel testified that he called Ford to the stand to corroborate Lombardo's testimony that on the morning of the murders:

she saw an automobile fitting the description of the car Mr. Ford saw pull up on her street and a black man exited the car and there were two other individuals in the car, and that the black man placed a large bag in the trunk of a large car and re-entered the car and left again.

Brief of Appellant at 32. Counsel added that "I was assuming Mr. Ford would say that he picked out Mr. Kirksey, and felt Faraby Anysia Lombardo would say that was the same individual she saw on her street." Id. Although counsel did not mention a yellow car in this portion of his testimony, the passages cited clearly restate the "yellow car" theory.

On the other hand, Byrd relies on the following exchange from the Rule 27.26 hearing:

Q: But at the point in time Oscar Ford was on the stand, the State had already suggested to the Court that, in fact, the yellow Ford had nothing to do with the crime, is that correct, another car was possibly used?

A: I don't recall, but I don't think anything really pointed to the yellow Ford.

Q: Yet, as far as his testimony, he saw three men near a yellow Ford?

A: I think another car, a green Plymouth, another vehicle.

Brief of Appellant at 33 (emphasis in original). Byrd interprets this passage to mean that counsel never sought to establish the "yellow car" theory. In light of the testimony cited above, other interpretations are equally plausible. For instance, Aylward might have questioned the truth of the "yellow car" theory after the trial, or might have merely been describing the prosecution's theory. Neither possibility, however, forecloses a finding that the "yellow car" theory was used at the time of trial.

In sum, we reiterate our view that counsel sought to use the "yellow car" defense at trial and sought to use Ford's initial identification to corroborate Lombardo's testimony. Thus, we did not improperly "construct strategic defenses which counsel does not offer," Harris, 894 F.2d at 878, and Byrd cannot point to any new legal developments supporting reconsideration of Ground E.4

2. Ground F--Racially Biased Jury Selection

Byrd was convicted by a all-white jury and has relied on various legal theories to support his claim that the prosecution unconstitutionally kept blacks off the jury.

In his Rule 27.26 petition, Byrd relied on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (Batson), which prohibited prosecutors from using peremptory strikes to create an all-white jury. Batson overruled Swain v. Alabama, 380 U.S. 202, 223-24, 85 S.Ct. 824, 837-38, 13 L.Ed.2d 759 (1965) (Swain), which allowed prosecutors to use peremptory strikes to create an all-white jury in individual cases, as long as they did not systematically keep blacks off juries.

The state courts rejected this claim, based on Allen v. Hardy, 478 U.S. 255, 258, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 (1986) (Allen ) (holding that Swain test still applies to pre-Batson trials, because (1) decisions such as Batson, which overrule precedent, are generally not applied retroactively, (2) Batson rule, unlike other rules which have been applied retroactively, serves ends other than integrity of jury factfinding, (3) prosecutors and judges have relied on Swain, and (4) retroactive application of Batson would seriously disrupt the administration of justice), and held that the Swain "systematic exclusion" test governed Byrd's claim. See Byrd v. State, 723 S.W.2d 37, 42 (Mo.App.) (applying Allen ), cert. denied, 484 U.S. 872, 108 S.Ct. 203, 98 L.Ed.2d 155 (1987).

In his first petition, Byrd requested discovery to ascertain whether blacks had been systematically excluded from St. Louis County juries. The district court denied Byrd's discovery request, and we held on appeal that the district court "properly denied Byrd's discovery request ... [because] Byrd has offered no cause for his failure to present evidence in support of his Swain claim to the state courts, as he must to overcome the procedural bar created by that failure." Byrd v. Armontrout, 880 F.2d at 7; see also Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (where habeas petitioner has failed to raise his claim in state courts, he has committed "procedural default" and must show cause for default and prejudice from constitutional violation to avoid procedural bar). We then denied Byrd's Swain claim on the merits, because the evidence was "insufficient to warrant relief under Swain." Byrd v. Armontrout, 880 F.2d at 7.

In his second petition, Byrd argues that he had good cause for failing to raise his Swain claim in state court, because Allen had not been decided until one day before his Rule 27.26 brief was filed. In our decision denying Byrd's first petition, we considered and rejected this argument. See Byrd v. Armontrout, 880 F.2d at 7 n. 6.

Byrd also claims that the procedural default doctrine is inapplicable because the Missouri courts in fact addressed his Swain challenge on the merits. The district court held that reconsideration of this claim was inappropriate because "[p]etitioner alleges no new factual evidence. He does not allude to some intervening change in the law. He simply disagrees with this Court's determination that a Swain claim was procedurally barred." Byrd, 733 F.Supp. at 1338 (E.D.Mo.1990). As petitioner has raised no new arguments, we agree. See Williams v. Lockhart, 862 F.2d at 158 (new "facts or legal developments" must be raised).

3. Mitigating Evidence of Good Character--Ground H

At trial, counsel informed the state trial court that he planned to offer the testimony of a Mr. Coble that Byrd had been nominated for a good citizenship award in connection with assistance he had given the police in investigating a burglary. The court ruled that if the defense called Coble, the state would be allowed to cross-examine him about his knowledge of evidence of Byrd's bad character (such as Byrd's arrest records). As a result, defense counsel declined to call Coble as a witness.

In Ground H of his second petition, Byrd claimed that the trial court's ruling allowing cross-examination violated his right to present evidence of mitigating circumstances, because the ruling "left him with a 'Hobson's choice' and constructively denied him the opportunity to present all mitigating evidence." Byrd v. Delo, 733 F.Supp. at 1338.

We initially rejected Byrd's argument because allowing impeachment of witnesses is simply not identical to exclusion of such witnesses. See Byrd v. Armontrout, 880 F.2d at 11.

Byrd now argues that if the prosecutor's impeachment of a character witness concerns matters beyond the proper scope of cross-examination, the defendant's right to introduce evidence of mitigating circumstances has been unconstitutionally "chilled" if the mitigating evidence was not introduced. Reply Brief of Appellant at 12-13 (hereinafter "Reply Brief").

As noted above, reconsideration of repetitive claims is appropriate only where the petitioner has shown the existence of newly discovered evidence, an intervening change in the law, or some other persuasive reason for his or her failure to raise new arguments earlier. Instead, Byrd has merely restated arguments which have been made and rejected by this court and which were based on well-settled law. See Byrd v. Armontrout, 880 F.2d at 11; see also Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (jury must be allowed to consider mitigating circumstances). Thus, there is no reason why Byrd should be able to relitigate Ground H on the merits, and we accordingly affirm the district court's denial of that claim.

B. NEW CLAIMS

Byrd also raised six new claims in his second habeas petition, including: (1) introduction of illegally obtained testimony ("Ground B"); (2) perjured testimony by a prosecution witness ("Ground C"); (3) failure to disclose exculpatory evidence ("Ground D"); (4) two claims alleging unconstitutional jury instructions ("Ground A" and "Ground G"); and (5) a claim that the infliction of capital punishment in this case is disproportionate ("Ground I").

When a second habeas petition raises claims not raised in the first petition, "full consideration of the merits can be avoided only if there has been an abuse of the writ." Sanders, 373 U.S. at 17, 83 S.Ct. at 1078. Whether a habeas claim is "abusive" is governed by the "cause and prejudice" standard governing allegations of procedural default.5 See Smith v. Armontrout, 888 F.2d 530, 541 (8th Cir.1989) (abusiveness determined by "cause and prejudice" test); see also Wainwright, 433 U.S. at 87-91, 97 S.Ct. at 2506-09 (applying "cause and prejudice" test to procedural default).

An allegedly abusive claim may not be entertained unless the petitioner can show (1) cause sufficient to excuse the failure to raise the claim earlier, Smith v. Armontrout, 888 F.2d at 541, and (2) prejudice resulting from the alleged deprivation of constitutional rights. Such prejudice occurs if, absent the alleged violations, "the factfinder would have had a reasonable doubt regarding guilt." Byrd v. Delo, 733 F.Supp. at 1339; see also Dalton v. United States, 862 F.2d 1307, 1310 (8th Cir.1988).

Even if the "cause and prejudice" test is not met, a petitioner's claim may be considered on the merits if he or she can show that newly discovered evidence would cause his or her acquittal on retrial, or that he or she is innocent. See Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986) (Murray ) ("cause and prejudice" test inapplicable where the alleged "constitutional violation has probably resulted in the conviction of one who is actually innocent."); Mastrian v. McManus, 554 F.2d 813, 823 (8th Cir.) (Mastrian ), cert. denied, 433 U.S. 913, 97 S.Ct. 2985, 53 L.Ed.2d 1099 (1977) (newly discovered evidence justifies habeas relief if it "would probably produce an acquittal on retrial").

Byrd initially argues that we should not consider the question of abusiveness because the state did not plead abuse of the writ before the district court. Brief of Appellant at 19, 38. See also Sanders, 373 U.S. at 10-11, 83 S.Ct. at 1074-75 ("the burden is on the Government to plead abuse of the writ"). We disagree. The record demonstrates that in its response to Byrd's motion for stay of execution, the only major document filed by the state in district court, the state specifically described each of Byrd's new claims as "abusive," Suggestions in Opposition to Application for Stay of Execution at 2-3, and argued that "[Byrd's] claims constitute an abuse of writ, [and] are procedurally defaulted." Id. at 2-3.6 Accordingly, we will address each of Byrd's new claims below.

1. Illegally Obtained Confession--Ground B

At trial, O.C. Green and James Mydell testified that while they were imprisoned in Georgia, Byrd told them that he committed the crimes at issue. In Ground B of his second petition, Byrd alleges that Green and Mydell were government "plants" and that therefore their testimony should have been excluded. See Massiah v. United States, 377 U.S. 201, 202-03, 84 S.Ct. 1199, 1200-01, 12 L.Ed.2d 246 (1964) (where defendant made incriminating statements to fellow narcotics dealer who was cooperating with authorities, statements excluded as violation of Sixth Amendment). The district court denied this claim on the grounds that (1) Byrd has shown no cause for failing to raise this claim in his first petition, (2) he has not shown that the "actual innocence" exception applies, and (3) his substantive claim is without merit. See Byrd v. Delo, 733 F.Supp. at 1340-41.

On appeal, Byrd argues that the "actual innocence" exception to the abusiveness doctrine applies to this case. The district court adequately responded to this claim by stating that "even without the testimony of Green and Mydell, [Byrd's] confession to his second wife as well as significant circumstantial evidence ... provide an adequate basis for establishing [Byrd's] guilt." Id. at 1341. We agree and therefore hold that Byrd was not prejudiced by the admission of the testimony of Green and Mydell and that the actual innocence exception is also inapplicable.

2. Perjury--Ground C

At trial, O.C. Green testified that he had made no deals with prosecutors. In fact, Green had made a plea agreement with authorities in Georgia, which provided that the state would "drop pending armed robbery and murder charges against Green in return for Green's testimony with respect to charges pending against petitioner in Georgia." Id.

In Ground C of his second petition, Byrd argues that because Green perjured himself regarding his plea agreement with Georgia authorities, habeas relief is appropriate. The district court held that Byrd was not prejudiced by Green's perjury, because "absent the testimony of Green ... the state presented sufficient evidence of petitioner's guilt." Id.

We assume for the purposes of this analysis that Byrd demonstrated cause for his failure to raise Ground C in his first petition, because "the information concerning the charges dropped about O.C. Green came to counsel's attention only after the filing of his initial habeas application in 1987." Brief of Appellant at 25. We agree with the district court, however, that Byrd has not established prejudice arising out of Green's perjured testimony. Even without Green's testimony, Byrd's confessions to Mydell and his second wife, as well as significant circumstantial evidence, support the jury's verdict. For the same reason, Byrd cannot obtain relief under the "actual innocence" exception to the "cause and prejudice" rule.7

Finally, Byrd may not obtain relief under the newly discovered evidence exception because newly discovered evidence justifies habeas relief only if it would "produce an acquittal on retrial." Mastrian, 554 F.2d at 823. For the reasons stated above, we hold that exclusion of Green's testimony or exposure of his perjury would not produce an acquittal on retrial.

3. Failure to Disclose Exculpatory Evidence--Ground D

In Ground D of his second petition, Byrd alleges that law enforcement authorities failed to disclose numerous items of exculpatory evidence, including reports suggesting that numerous persons saw a maroon Cadillac near the murder scene on the morning of the crime, a confession by another person, and the existence of numerous keys at the murder scene, none of which belonged to Byrd. In addition, Byrd notes that the police discovered numerous fingerprints at the murder scene, but did not reveal to whom they belonged. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (requiring disclosure of exculpatory evidence).

The district court rejected Byrd's claim because Byrd "utterly fail[ed] to offer an explanation as to why these arguments were not raised in earlier petitions," Byrd v. Delo, 733 F.Supp. at 1341, and "had [the evidence] been presented at trial, this Court cannot conclude that the factfinder would have a reasonable doubt with respect to guilt." Id. at 1342.

On appeal, Byrd excuses his failure to raise this issue in his first petition on the grounds that "much information was not given to Byrd's habeas counsel until after the prior petition for habeas had progressed." Brief of Appellant at 39 (emphasis added).8 Byrd's brief does not specify, however, which evidence was disclosed before the first petition was filed and which had been disclosed more recently.

Assuming arguendo that good cause exists for Byrd's failure to file his exculpatory evidence claim, we agree with the district court's holding that he has not carried his burden of establishing prejudice or actual innocence. See Smith v. Armontrout, 888 F.2d at 540 (if the state pleads abuse of writ as a defense, "the burden is on petitioner to establish that the defense is without merit"). Byrd has not made any effort to show how specific items of previously undisclosed evidence prove his innocence, or how their exclusion helped the prosecution show guilt. Thus, we simply cannot ascertain to what extent, if any, Byrd's case was prejudiced by the alleged failure to disclose exculpatory evidence, or how the allegedly withheld evidence proves his innocence.

Accordingly, we affirm the district court's denial of Ground D.

4. Jury Instructions--Grounds A and G

In Grounds A and G of his second petition, Byrd challenges these instructions:

Instruction 54

In determining the punishment to be assessed under Count IV against the defendant for the murder of Judy Cazaco, you must first unanimously determine:

1. Whether the murder of Judy Cazaco was committed while the defendant was engaged in the commission of the capital murders of James Wood, Edna Ince and Carolyn Turner.

2. Whether the defendant murdered Judy Cazaco for the purpose of receiving money or anything of monetary value.

You are further instructed that the burden rests upon the state to prove beyond a reasonable doubt at least one of the foregoing circumstances, and that it is an aggravating circumstance. The defendant is not required to prove or disprove anything.

Therefore, if you do not unanimously find from the evidence beyond a reasonable doubt that at least one of the foregoing circumstances exist and that it is an aggravating circumstance, you must return a verdict fixing the punishment of the defendant at imprisonment for life by the Division of Corrections without eligibility for probation or parole until he has served a minimum of fifty years of his sentence.

Instruction 55

If you find and believe from the evidence beyond a reasonable doubt that one or more of the circumstances submitted in Instruction Nos. 51, 52, 53, 54 exists and that at least one of them is an aggravating circumstance, it will then become your duty to decide whether a sufficient aggravating circumstance or circumstances exist to warrant the imposition of death as punishment of defendant. In deciding that question you may consider all of the evidence relating to the murders of James Wood, Edna R. Ince, Carolyn Turner and Judy Cazaco.

You may also consider any of the aggravating circumstances referred to in Instruction Nos. 51, 52, 53, 54 which you found beyond a reasonable doubt.

If you do not unanimously find from the evidence beyond a reasonable doubt that a sufficient aggravating circumstance or circumstances exists to warrant the imposition of death as defendant's punishment, you must return a verdict fixing his punishment at imprisonment for life by the Division of Corrections without eligibility for probation or parole until he has served a minimum of fifty years of his sentence.

Instructions 56-59

If you decide that a sufficient aggravating circumstance or circumstances exist to warrant the imposition of death, as submitted in Instruction No. 51, it will then become your duty to determine whether a sufficient mitigating circumstance or circumstances exist which outweigh such aggravating circumstance or circumstances so found to exist. In deciding that question you may consider all of the evidence relating to the murder of James Wood.

You may also consider:

1. Whether the defendant has no significant or prior criminal activity.

2. The age of the defendant at the time of the offense.

You may also consider any circumstances which you find from the evidence in extenuation or mitigation of punishment. If you unanimously decide that a sufficient mitigating circumstance or circumstances exist which outweigh the aggravating circumstance or circumstances found by you to exist, then you must return a verdict fixing defendant's punishment at imprisonment for life by the Division of Corrections without eligibility for probation or parole until he has served a minimum of fifty years of his sentence under Count I.

Instruction 60

Even if you decide that a sufficient mitigating circumstance or circumstances do not exist which outweigh the aggravating circumstance or circumstances found to exist, you are not compelled to fix death as the punishment. Whether that is to be your final decision rests with you.

Byrd v. Delo, 733 F.Supp. at 1342-43.

a. Instructions 56-59--Ground A

In Ground A of his second petition, Byrd argues that Instructions 56-59 unconstitutionally "prohibited the jury from considering mitigating evidence unless such circumstances were unanimously found to exist." Byrd v. Delo, 733 F.Supp. at 1343. The district court rejected this claim as abusive and as without substantive merit. Id. at 1343-44.

On appeal, Byrd argues that the "actual innocence" exception of Murray requires habeas relief in this case.9 This doctrine is applicable to sentencing if, had the jury had been properly instructed, it would not have sentenced petitioner to death. Gilmore v. Delo, 908 F.2d 385, 387 (8th Cir.1990), aff'g No. 89-1167(C)(2), slip op. at, 1989 WL 109554 (E.D.Mo. June 20, 1989) (Gilmore ).

Byrd concedes that in Gilmore, the district court held that "this very instruction" was constitutional. Brief of Appellant at 14 n. 11.10 On appeal, the Gilmore court declined to reach the merits, and instead affirmed the denial of habeas relief based on the "abuse of the writ" defense. Gilmore, 908 F.2d at 386-87. The Gilmore petitioner, like Byrd, sought to bring himself within the "actual innocence" exception to the abusiveness doctrine. We rejected this argument and held that the petitioner would have been sentenced to death even if the jury had been properly instructed. The court so held for two reasons. First, the jury had found several aggravating circumstances, including two other murders, numerous prior criminal convictions, and the fact that the murder was for the purposes of receiving money and preventing the victim from testifying. Id. at 387. Similarly, multiple aggravating circumstances existed in this case. See State v. Byrd, 676 S.W.2d 494, 498, 507 (Mo.1984) (banc) (murders committed in commission of other capital murders and for purpose of receiving money, and Byrd "commended the practice of either killing or incapacitating robbery victims ... to prevent them from testifying"), cert. denied, 469 U.S. 1230, 105 S.Ct. 1233, 84 L.Ed.2d 370 (1985).

Second, the evidence of mitigating circumstances in Gilmore was quite weak. The only mitigating evidence consisted of one witness who testified that the petitioner had been abused as a child, another who testified that the petitioner was "borderline mentally retarded," and the petitioner's own testimony that at the time of the murder he was an alcoholic and a drug abuser. Gilmore, 908 F.2d at 387-88. Byrd's trial counsel presented four witnesses. One of the witnesses was Byrd's mother, who testified that Byrd's father died when he was very young and that Byrd was a Korean War veteran. The other three witnesses cited in Byrd's brief, James Gilsinan, Steven Puro, and Father Francis Cleary, criticized the death penalty generally without discussing Byrd himself. Thus, Byrd's mitigating evidence is as weak, if not weaker, than that of the petitioner in Gilmore.

In sum, we hold that the actual innocence exception, as it applies to the penalty phase, does not apply because Byrd would have been sentenced to death even if the jury had been instructed differently. See Gilmore, 908 F.2d at 387.

Accordingly, we affirm the district court's denial of Ground A.

b. Instructions 54-56--Ground G

In Ground G of his second petition, Byrd claims that Instructions 54-56 unconstitutionally required him to prove mitigating circumstances beyond a reasonable doubt, or were at least so confusing that a reviewing court could not determine whether the jury reached its conclusion on the basis of an unconstitutional understanding. The district court rejected this claim as an abuse of the writ and on the merits. Byrd v. Delo, 733 F.Supp. at 1344-45.

On appeal, Byrd makes the same procedural argument which we rejected in our discussion of Ground A, i.e., that the actual innocence exception should apply because Byrd would not have been sentenced to death if the jury had been properly instructed.

As noted in our discussion of Ground A, the evidence of multiple aggravating circumstances was compelling and Byrd's evidence of mitigating circumstances is weak. We therefore hold that the actual innocence exception, as it applies in the penalty phase, does not apply because Byrd would have been sentenced to death even if the jury instructions had been less confusing.

5. Proportionality--Ground I

In Ground I of his second petition, Byrd claims that his death sentence is disproportionate when compared with those of similar offenders. Byrd states that he did not raise this claim in his first petition because he only recently discovered evidence that the Missouri Supreme Court had based its proportionality review of his sentence on inaccurate information. Under Missouri law, the Missouri Supreme Court's staff is required to prepare a synopsis of "all cases in which a sentence of death or life without parole was imposed after May 26, 1977." Brief of Appellant at 19. Byrd claims that the Missouri Supreme Court's records are incomplete and inaccurate, and that the court therefore "could not have engaged in the required proportionality review." Id. at 21.

Where, as here, the petitioner's claim is based on newly discovered evidence, the "cause and prejudice" test is inapplicable. Instead, the court must determine whether the newly discovered evidence would have resulted in an acquittal or a lesser sentence on retrial. See Mastrian, 554 F.2d at 823. As noted above, Byrd's crimes and the evidence at trial were quite similar to those in Gilmore and other cases where the death penalty has been imposed. Cf. State v. Gilmore, 661 S.W.2d 519, 525 (Mo.1983) (banc) (citing similar cases), cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1983). The court therefore finds that a more comprehensive database would not have changed the Missouri Supreme Court's holding that his death sentence was "not disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." State v. Byrd, 676 S.W.2d at 507.11

II. STAY

In the alternative, Byrd argues that because he has not yet exhausted his state remedies by filing a state habeas petition under Missouri Supreme Court Rule 91 ("Rule 91 petition"), the court should continue its stay of execution pending the disposition of such a petition.

As Byrd notes, a stay of execution is generally appropriate where a petitioner has failed to exhaust state remedies. See, e.g., Shaw v. Martin, 613 F.2d 487 (4th Cir.1980); Fletcher v. Armontrout, 733 F.Supp. 1348 (W.D.Mo.1990) (granting stay, and rejecting view that abolition of Rule 27.26 repealed state habeas remedy). On the other hand, Rule 27.26 and Rule 91 both incorporate relevant constitutional law. Thus, a stay in this case might well be futile.12

As the Missouri courts enacted both Rule 27.26 and Rule 91, they should decide the proper relationship between these two rules. Thus, the court must decide whether continuing the stay would make it any easier for the Missouri courts to resolve this question.

If we dissolve our stay, Byrd can still request a stay from the Missouri courts, and go on to litigate his Rule 91 claim if the stay is granted. It follows that it would be pointless for us to continue our stay, because the relationship between Rule 27.26 and Rule 91 can be addressed by the Missouri courts whether the stay is continued or dissolved. Accordingly, we will dissolve the stay of execution.

In sum, we affirm the district court's denial of Byrd's habeas petition and dissolve our stay of execution.

We are grateful to and compliment appointed counsel for their zealous and effective representation of Byrd. Their performance has been exemplary.

ON PETITION FOR REHEARING AND STAY OF EXECUTION

The panel has granted a rehearing and the application for stay of execution. Judge Bowman dissents from that grant of rehearing by the panel. The date of execution set by the Missouri Supreme Court is hereby stayed until further order of this court. The petition for rehearing en banc is hereby rendered moot.

ARNOLD, Circuit Judge, with whom McMILLIAN, Circuit Judge, joins.

In denying Byrd's Rule 91 petition for habeas corpus without giving a reason, the Missouri Supreme Court has arguably removed any procedural bar, in the Wainwright sense, to federal habeas consideration of the merits of the grounds alleged in the petition. We do not know the ground upon which the Missouri Supreme Court decided to deny the petition. In the absence of a clear statement that this action was based on state procedural law, the merits are open on federal habeas.

Most of the grounds alleged in the petition would still not get Byrd anywhere, as the state argues, because we have either previously rejected them on the merits, or because our rejection of them was based not on procedural-bar but rather on successiveness or abuse-of-the-writ principles. Two of the grounds, however, may not fit this mold. The Swain ground, see paragraph 17 of the Rule 91 petition, and the Mills claim, see paragraph 18 of the Rule 91 petition, both appear to have been rejected by the panel as procedurally barred. See the panel's opinion, slip op. 6-8, 14-16. If the Missouri Supreme Court's form of disposition of the Rule 91 petition dissolves the procedural bar, so to speak, these claims are now open for adjudication on the merits in the federal habeas forum.

We believe the panel should carefully examine these issues. We therefore vote to grant rehearing by the panel and to stay the execution until the panel has made its decision.

*****

1

The Honorable John F. Nangle, Chief Judge, United States District Court for the Eastern District of Missouri. Judge Nangle took senior status in May 1990

2

The underlying facts of this case are set forth in this court's opinion denying Byrd's first habeas corpus petition. See Byrd v. Armontrout, 880 F.2d 1 (8th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 1326, 108 L.Ed.2d 501 (1990). Byrd was convicted of murdering four people at a shopping center in St. Louis County, Missouri, and was sentenced to death

3

At the time of the hearing in 1985, Mo.Sup.Ct.R. 27.26 governed petitions for post-conviction relief

4

Byrd also raises two other arguments. First, Byrd argues that he is factually innocent. As noted above, to gain reconsideration of a repetitive claim a petitioner must establish both a colorable showing of factual innocence and new facts or legal developments warranting relitigation of his claim. Williams v. Lockhart, 862 F.2d 155, 158 (8th Cir.1988). As the latter requirement has not been met, we need not decide whether the first requirement has been satisfied as well. For the same reason, we need not address Byrd's claim that his factual innocence requires reconsideration of Grounds E and H

Second, Byrd argues that none of his claims are barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (Teague ) (holding that "new rules of law" cannot be applied retroactively to habeas petitions). Neither the district court nor the state argues that Teague applied to any claims other than Grounds A, G, and H, and the latter claims are barred on other grounds. Accordingly, we decline to decide whether Teague governs any of Byrd's claims.

5

Accordingly, we reject the state's argument that the district court should have considered abuse of the writ and procedural default separately

6

Furthermore, this court has suggested that district courts may raise the question of abusiveness sua sponte. See Miller v. Solem, 758 F.2d 144, 145 (8th Cir.) ("[O]nce the government has raised the issue of abuse or it has been raised sua sponte, the burden shifts to the petitioner to show why he has not abused the writ."), cert. denied, 481 U.S. 1054, 107 S.Ct. 2192, 95 L.Ed.2d 848 (1987)

7

Because Green's testimony was amply corroborated, we also find that Ground C is without substantive merit. See United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976) (conviction based on perjured testimony must be set aside only if "reasonable likelihood that the false testimony could have affected judgment of the jury"); United States ex rel. Dowd v. Lane, 574 F.Supp. 972, 975-76 (N.D.Ill.) (although witness falsely testified that he made no deals with prosecution, conviction upheld where "testimony of several witnesses and other evidence" corroborated witness's testimony regarding petitioner's guilt)., aff'd on other grounds, 762 F.2d 1015 (7th Cir.1985)

8

In addition, Byrd suggests that the police continue to withhold unspecified information

9

Byrd argued before the district court that good cause existed for his failure to raise Grounds A and G earlier, because of his attorney's "simple, excusable inadvertence." Byrd v. Delo, 733 F.Supp. 1334, 1343 (E.D.Mo.1990). The district court correctly noted that attorney error short of ineffective assistance of counsel does not constitute "good cause," id., and Byrd apparently does not contend otherwise on appeal. See also Harper v. Nix, 867 F.2d 455, 457 (8th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3194, 105 L.Ed.2d 702 (1989)

10

In addition, we have upheld a nearly identical instruction on other grounds. See Smith v. Armontrout, 888 F.2d 530, 544-46 (8th Cir.1989) (rejecting claim that instruction unconstitutionally shifted burden of proving that mitigating circumstances outweighes aggravating circumstances, but declining to address on merits claim that instruction required unanimous finding of mitigating circumstances)

11

For the same reason, we reject as an abuse of the writ Byrd's claim that the state's inadequate recordkeeping is itself a constitutional violation. Cf. Kordenbrock v. Scroggy, 680 F.Supp. 867, 898-99 (E.D.Ky.) (rejecting similar claim on merits because federal courts are "generally not required to reexamine that state's proportionality review ... [unless] the imposition of capital punishment in [petitioner's] case shocks the conscience"), aff'd on other grounds, 889 F.2d 69 (6th Cir.1989)

12

Byrd also suggests that his alleged failure to exhaust remedies bars dismissal based on abuse of the writ or procedural default. In fact, the purpose of the procedural default doctrine is to preclude federal court review of "contentions of federal law which were not resolved on the merits in the state proceeding due to respondent's failure to raise them there as required by state procedure." Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1987) (emphasis in original). Thus, Byrd's argument on this issue is without merit

 
 

942 F.2d 1226

Byrd v. Delo

United States Court of Appeals for the Eighth Circuit

August 14,1991

Before McMILLIAN, ARNOLD and BOWMAN, Circuit Judges.

ARNOLD, Circuit Judge.

In this death-penalty case from Missouri, we have before us what is in effect a third petition for habeas corpus. Petitioner, Maurice Oscar Byrd, claims that a legal development occurring after the dismissal of his second petition opens up some of his federal constitutional claims for review on the merits. The legal development in question is an order of the Supreme Court of Missouri, denying, without comment, Byrd's original petition for habeas corpus under Mo.Sup.Ct.R. 91, an order that the Missouri Supreme Court later clarified by stating that its action had been based solely on state procedural grounds. Believing that Byrd's reliance on this new development was a nonfrivolous theory with the arguable effect of clearing away procedural barriers to federal habeas relief, we stayed his execution, set a briefing schedule, stayed the issuance of our mandate following our affirmance of the dismissal of his second habeas petition, and heard oral argument.

In the meantime, the Supreme Court has decided Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), and Ylst v. Nunnemaker, --- U.S. ----, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991).

Petitioner argues that two federal claims are now open for review on the merits. First, he claims that his jury was instructed that it could not consider any mitigating circumstance unless it first found unanimously the existence of that circumstance. This instruction, we are told, violates the Eighth Amendment, as incorporated against the states by the Due Process Clause of the Fourteenth Amendment, and as interpreted by the Supreme Court in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). For reasons to be detailed in this opinion, we reject this claim. Petitioner's Mills argument was not raised in his first habeas petition. There was no good reason for this omission. Therefore, to entertain this claim on its merits now would be an abuse of the writ. See McCleskey v. Zant, --- U.S. ----, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

The abuse-of-the-writ doctrine focuses not on what occurred in the state courts, but on what occurred (or did not occur) in a previous federal habeas petition. Accordingly, whatever the legal effect of the Missouri Supreme Court's handling of Byrd's recent petition under Rule 91, analysis of the Mills claim is unaffected. It was an abusive claim at the time of our dismissal of the second habeas petition, and it is still an abusive claim.

Byrd's second argument has to do with the selection of his trial jury. He claims that the prosecuting attorney exercised peremptory challenges on the basis of race, and did so consistently in case after case, thus violating the Equal Protection Clause of the Fourteenth Amendment as interpreted by the Supreme Court in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

After analyzing the history of this claim, we conclude that its previous rejection was based on a procedural default occurring in the state courts. Accordingly, as to the Swain claim, it is necessary to address Byrd's contention that the Missouri Supreme Court's recent orders remove any state procedural bar. Having considered this argument in light of the Supreme Court's recent rulings in Coleman and Ylst, we hold that it cannot withstand analysis. The state procedural bar previously identified as an obstacle to the Swain claim remains undisturbed. This claim, too, must be once again rejected.

The stay of execution previously entered must be dissolved. We direct that our mandate issue forthwith. A further stay of execution, if one is granted, must come from this Court en banc, the Supreme Court, or a justice thereof.

I.

In order to put the legal arguments in context, we recount as briefly as possible the relevant aspects of the procedural history of this case. Byrd's first petition for habeas relief was denied by the District Court, and this Court affirmed. Byrd v. Armontrout, 686 F.Supp. 743 (E.D.Mo.1988), aff'd, 880 F.2d 1 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1326, 108 L.Ed.2d 501 (1990). He then filed, as a separate proceeding, a second federal habeas corpus petition. The District Court denied this petition. Byrd v. Delo, 733 F.Supp. 1334 (E.D.Mo.1990). We affirmed. 917 F.2d 1037 (8th Cir.1990).

In our affirming opinion, nine separate claims were examined, three of them repetitive (that is, claims that had already been considered and rejected in the first habeas proceeding), and six of them new (that is, claims that had not been raised in the first federal habeas proceeding).

At the end of our opinion, we addressed a point made by Byrd with respect to the possible availability of an additional state remedy. Byrd said he had not yet filed a state habeas petition under Mo.Sup.Ct.R. 91, and asked us to continue his stay of execution until such a petition could be filed and disposed of. We denied this request. The Missouri courts, we said, should be the ones to decide whether the execution should be stayed pending determination of a Rule 91 petition.

Counsel for Byrd, showing their customary diligence and alertness, promptly filed an original habeas corpus petition with the Supreme Court of Missouri under Rule 91. The Missouri Supreme Court denied the petition on the same day that it was filed, October 23, 1990. The Supreme Court's order read as follows:

Now at this day, on consideration of the petition for writ of habeas corpus herein to the said respondent, it is ordered by the court here that the said petition be, and the same is hereby denied.

Byrd then returned to us. He invoked the "plain statement" rule of Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). The Missouri Supreme Court's order, he argued, did not contain a plain statement demonstrating that its rejection of Byrd's petition was based on state procedural grounds. Accordingly, under Harris, it should be assumed that the state court had reviewed and rejected Byrd's federal claims (contained in the Rule 91 petition) on their merits. This action by the state court, Byrd argued, opened up the merits of these same claims for federal habeas review. On October 26, 1990, we granted Byrd's motion for stay of execution and stay of our mandate. We did so in the belief that his Harris v. Reed theory was substantial enough to deserve careful examination.

Three days later, the State filed with the Missouri Supreme Court a "Motion for Modification of Order," asking the Court to change its previous order to demonstrate that it had been based on procedural grounds, and not on the merits. Before Byrd could file an opposition to this motion, the Missouri Supreme Court granted it. It entered the following order on October 29, 1990:

The order of this Court entered on October 23, 1990, denying the petition for writ of habeas corpus is vacated and in lieu thereof the following order is entered this date: The petition discloses no ground for relief that could not have been asserted either in the initial appeal or in the 27.26 motion, both of which have been finally determined, or [are] otherwise procedurally barred. The petition is denied. All further claims for relief in the courts of Missouri are procedurally barred.

The State then asked us to vacate our stay of execution. The Missouri Court's order of October 29, it said, exploded petitioner's theory. The order demonstrated that the Supreme Court's rejection of petitioner's new Rule 91 petition was not based on the merits, but rather solely on the state-law procedural ground that Rule 91 is not available to litigate issues that could have been asserted earlier, either on direct appeal or in a state post-conviction proceeding filed in a trial court. We denied the State's motion on the next day, October 30.

The circumstances surrounding the Missouri Supreme Court's second order--including the fact that it had been entered within a matter of hours, without allowing Byrd to file a response--convinced us that petitioner's Harris v. Reed theory remained substantial enough to prevent the carrying out of the death sentence until we could thoughtfully examine it. This Court en banc, the Circuit Justice, and the Supreme Court of the United States all denied motions by the State to vacate our stay. A briefing schedule was then set, and an oral argument held.

II.

Technically, we are still dealing with petitioner's second habeas petition. This is the petition whose dismissal we affirmed on October 19, 1990. Thereafter, for reasons that have been described, we stayed the issuance of our mandate, stayed petitioner's execution, and proceeded to consider his claims in the ordinary course. In form, therefore, the action we take today consists simply of dissolving the previous stay of mandate, dissolving also the stay of execution, and allowing the case to proceed further, either to the Court en banc or to the Supreme Court of the United States.

In substance, though, as in Simmons v. Lockhart, 915 F.2d 372 (8th Cir.1990), we are considering a third federal habeas petition. Byrd claims that legal developments occurring after the dismissal of his second petition have opened up the merits of some at least of his federal constitutional attacks on his sentence and conviction. In our order of October 29, 1990, we identified two claims that we believed deserving of consideration under this new theory: the arguments described above as the Mills and Swain claims. Byrd's supplemental brief argues these two claims, and we now proceed to discuss them.

A.

On reflection, the Mills claim is easily disposed of. This is a new claim, and was identified as such in our 1990 opinion addressing the second habeas petition. The Mills claim was not raised in the first habeas petition. The District Court, considering the second habeas, rejected the claim as abusive and as without merit. In his second petition, Byrd argued that the "actual innocence" exception should excuse his failing to raise the Mills issue in his first federal habeas petition. We rejected this argument, holding that "Byrd would have been sentenced to death even if the jury had been instructed" in accordance with his Mills contention. Byrd v. Delo, 917 F.2d at 1047.

This ground of rejection is unaffected by the Missouri Supreme Court's handling of the Rule 91 petition. The abuse-of-the-writ doctrine, setting out strict requirements for a federal court to entertain an argument omitted from a previous federal habeas petition, concentrates on the previous course of proceedings in the federal courts. It has nothing to do with questions of procedural default in the state courts, and those questions are the only ones even arguably affected by the course of the Rule 91 proceeding in the Supreme Court of Missouri. The abuse-of-the-writ ground which we relied on in our opinion on Byrd's second petition is just as good now as it was then. Accordingly, we again reject his Mills claim without reaching its merits.

B.

Analysis of the Swain claim is more complicated. Our opinion on Byrd's second petition rejected the Swain claim because it had been raised and rejected in his first petition, and no good reason had been shown why the ends of justice would require or permit considering it in a second petition. This ground, like the one discussed above with respect to the Mills claim, concerns itself with the prior course of proceedings in federal court. Petitioner, however, takes us to another level of analysis.

The Swain claim was rejected in the first habeas petition, he points out, for a combination of reasons. First, to the extent that the claim rested only on the record before the habeas court, it was without merit. This was not all there was to the claim at that time, however. Byrd also attempted to introduce new evidence purporting to show a consistent and unbroken habit of excluding black people from juries, the kind of evidence that would be sufficient under Swain.

The District Court refused to entertain this evidence, ruling that it was procedurally barred by Byrd's failure to offer it in the state courts. Thus, if the recent action of the Supreme Court of Missouri in the Rule 91 case has the effect of removing a state procedural bar as to those claims (including the Swain claim) included in the Rule 91 petition, Byrd's argument that his Swain claim is now open for decision on its merits might have substance.

We must therefore analyze the effect of the Missouri Supreme Court's two orders, and, in doing so, take into account the recent opinions of the Supreme Court of the United States in Coleman and Ylst.

The latter case does not help much. The Court does remark that "[s]tate procedural bars are not immortal ...; they may expire because of later actions by state courts." 111 S.Ct. at 2593. The action of a state court, in other words, in reaching the merits of a federal claim could remove a procedural bar in place because of previous state-court action. This is the kind of argument that Byrd is making here. In order to evaluate the argument, though, we must first determine whether the recent actions of the Supreme Court of Missouri in fact were based on its view of the merits of Byrd's federal claim. As to this question, Ylst is not in point. Some of the facts are similar, but the legal analysis is different. The petitioner in Ylst did claim that an order of the Supreme Court of California, entered without opinion, denying his petition for habeas corpus, had the effect of removing a state procedural bar.

In Ylst, though, a previous reasoned state-court opinion had rested its rejection of petitioner's claim explicitly on state procedural grounds. In that situation, the Supreme Court has now held, the federal habeas court should "look[ ] through" the unexplained order denying habeas and presume that it represents no disposition to depart from the earlier, reasoned state-court opinion based on state procedural law. Ylst, 111 S.Ct. at 2595.

This technique is unavailable in the present case. We do not have a previous reasoned state-court opinion declining to entertain the new evidence petitioner now offers in support of his Swain theory, whether on state procedural grounds or otherwise. The fact is that petitioner has never attempted to present this new evidence to a state court. Our conclusion, expressed in our previous opinions in this case, that this claim is procedurally defaulted rests upon our reading of state procedural law.

An attempt to offer new evidence in support of the Swain theory would not now be entertained, for at least two procedural reasons: the evidence should have been offered before trial in the state court, at a time when the venire could be effectively challenged; and, if that procedural ground could somehow be avoided, the evidence should have been offered in the state post-conviction proceeding under Rule 27.26. A second such proceeding would not now be entertained, there being no good reason why the evidence in question could not have been offered in the first such proceeding.

If Ylst is no help, however, Coleman furnishes direct guidance. Like the petitioner in Coleman, Byrd rests his case essentially on one passage in the Supreme Court's opinion in Harris v. Reed, supra. That passage reads as follows: "[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." 489 U.S. at 263, 109 S.Ct. at 1043 (internal quotations omitted). (We assume for present purposes that the Missouri Supreme Court's order denying Rule 91 relief is a "judgment" as that term is used in this passage in the Harris opinion. The State argues that it is not a "judgment," but only a discretionary denial of relief. Cf. Ylst, 111 S.Ct. at 2594 n. 2.) At the time we entered our stay of execution last October, we also focused on that passage in Harris.

The Supreme Court has now explained that the passage in question should not be read in isolation. The Coleman opinion lays down the following as the true statement of the rule in Harris:

After Harris, federal courts on habeas corpus review of state prisoner claims, like this Court on direct review of state court judgments, will presume that there is no independent and adequate state ground for a state court decision when the decision "fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion." [Michigan v. ] Long, supra, [463 U.S. 1032] at 1040-1041 [103 S.Ct. 3469 at 3476-3477, 77 L.Ed.2d 1201 (1983) ].

In habeas, if the decision of the last state court to which the petitioner presented his federal claims fairly appeared to rest primarily on resolution of those claims, or to be interwoven with those claims, and did not clearly and expressly rely on an independent and adequate state ground, a federal court may address the petition.

111 S.Ct. at 2557 (footnote omitted).

Byrd cannot meet this test. The order of the Supreme Court of Missouri, entered on October 26, 1990, denying his Rule 91 habeas petition is simply silent as to the underlying grounds and reasons. It does not "fairly appear[ ] to rest primarily on federal law, or to be interwoven with the federal law...." The Harris presumption that federal law was the basis of a state court's decision is therefore inapplicable. We must evaluate the effect of the Missouri Supreme Court's order without the aid of this presumption. When the question is phrased that way, we think the answer is plain.

The Missouri Supreme Court rejected the Rule 91 petition on the same day it was filed. This indicates that the ground of rejection was not an examination of the merits of the petition, which surely would have taken more time, but rather the application of a procedural rule believed by the Missouri Supreme Court to be plain and obvious: that Rule 91 cannot be used as a vehicle for raising questions that could have been raised on direct appeal or in a Rule 27.26 proceeding, filed initially in a state trial court.

Petitioner argues that this state-law ground, if it was indeed the reason for the Missouri Supreme Court's action, cannot qualify as independent and adequate, because the Missouri Supreme Court, in previous actions on Rule 91 petitions, has not applied the asserted procedural rule regularly and consistently. We reject this argument. Petitioner cites no case, and we know of none, where the Missouri Supreme Court, acting on a Rule 91 petition, either granted relief or denied relief on its merits, as to claims that could have been raised earlier on direct appeal or under Rule 27.26.

All of the Rule 91 orders, in cases involving convicted prisoners, of which we are aware are either unexplained denials, or, in the very recent past, denials accompanied by a summary statement that they are based on state procedural law. After Coleman, there is simply no reason to construe an unexplained Rule 91 denial as opening up the merits of a previously defaulted federal issue.

If there were any doubt, it would be removed by the Missouri Supreme Court's subsequent order, entered on the motion of the State, explicitly referring to state procedural grounds. Petitioner complains that the order was entered in haste, with the Court not even giving him a full day within which to file an opposition. He intimates that the Missouri Supreme Court's only purpose was to expedite his death, and that its second order was entered only because this Court, believing that uncertainty had been injected by the first order, had stayed the execution.

Byrd also claims that under state law, the second order was void, that Missouri state courts have no power to enter nunc pro tunc orders altering the legal effect of an order already entered. We have carefully considered these arguments, but ultimately we find them unavailing. The second order did no more than explain the Court's reasons for the first order. Certainly no one knows better than the Missouri Supreme Court itself why it rejected the Rule 91 petition. Obviously the Court did not feel it was necessary to hear from petitioner on this point.

The Court, apparently, knew what it had meant and did not need one of the parties to the case to help it in expressing its own previously undisclosed intent. As to the argument that the second order was void under state law, we observe only that, for our purposes, "state law" is what the Supreme Court of Missouri says it is. Its entry of the second order is an implicit holding that it had power so to act. We decline to question the motives of the Supreme Court of Missouri. Its members, like us, are sworn to uphold the federal Constitution. We have no doubt that, like us, they attempt to do so to the best of their abilities and understanding.

III.

We have carefully examined Byrd's claims. We have reflected upon them with the attention appropriate to what is at stake here: a human life. We are persuaded that the law obliges us to reject his arguments.

Our order of October 26, 1990, staying issuance of our mandate and staying the execution of the sentence of death, is vacated. The stay of execution is dissolved. We direct that our mandate issue forthwith.

ORDER DENYING MOTION FOR STAY OF EXECUTION AND PETITION FOR REHEARING WITH SUGGESTION FOR REHEARING EN BANC

The petition for rehearing by the panel is denied. The motion to the court en banc for stay of execution and the suggestion for rehearing en banc is denied by reason of a lack of majority of active judges voting to rehear the case en banc. Chief Judge Lay and Judge Wollman dissent from the denial of the stay and the denial of the suggestion for rehearing en banc.

Statement of LAY, Chief Judge, with whom WOLLMAN, Circuit Judge, joins.

I vote to grant the rehearing en banc and to grant the stay of execution until such time as the court en banc can consider the possible conflict with decisions of this court and to evaluate the important constitutional claims involved in this death case. One of the claims petitioner has asserted is that at the time of his trial the prosecutor systematically excluded blacks from the jury. This claim has never been considered due to the procedural bar doctrine even though Byrd has raised this claim in every post-conviction proceeding in state or federal court. Within the procedural bar doctrine is an "ends of justice" exception as spelled out in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). See Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986). In failing to pass upon this question, our court remains in conflict with Pilchak v. Camper, 935 F.2d 145 (8th Cir.1991).

Byrd has presented this court with seven affidavits from criminal defense lawyers practicing in St. Louis. The affiants attest that the St. Louis prosecutor engaged in a systematic effort to use peremptory challenges to eliminate all blacks from juries in criminal cases. This appears to establish a prima facie due process violation under Swain v. Alabama, 380 U.S. 202, 222-24, 85 S.Ct. 824, 838-39, 13 L.Ed.2d 759 (1965). The panel refused to consider the affidavits, finding the claim procedurally barred.

Byrd first raised a jury selection issue on appeal of the denial of state collateral relief before the Missouri Court of Appeals. Byrd v. State, 723 S.W.2d 37, 42 (Mo.Ct.App.1986), cert. denied, 484 U.S. 872, 108 S.Ct. 203, 98 L.Ed.2d 155 (1987). He relied on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), but the court found Byrd could not avail himself of Batson because the case came down after Byrd's conviction was final and is not applied retroactively. See Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986). The Missouri court then added: "Furthermore, we have studied the trial court record and find no [sic] sufficient evidence to support a belief that racial prejudice was a decisive factor in the jury selected on [sic] process." 723 S.W.2d at 42.

Finding his Batson claim denied, Byrd attempted to bring a case under Swain in the federal habeas court. Swain was the law at the time of Byrd's conviction, and required evidence of systematic exclusion of blacks from jury panels over a period of time and in a series of cases. Byrd requested discovery on the Swain claim but was denied because he did not raise Swain in the state courts. Byrd v. Armontrout, 686 F.Supp. 743 (E.D.Mo.1988), aff'd, 880 F.2d 1, 7 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1326, 108 L.Ed.2d 501 (1990).

Byrd argued he had cause to rely on Batson because the Supreme Court had not yet decided that Batson would not be applied retroactively. The panel denied his discovery request and denied his Swain claim on the merits. Absent the opportunity for discovery Byrd had no evidence to support that claim. Id.

On a second habeas petition Byrd reiterated his Swain claim and was denied. On rehearing, the panel noted that the Missouri Supreme Court had denied Byrd's most recent appeal without making a plain statement that the denial was on procedural grounds. Byrd v. Delo, 917 F.2d 1037, 1048-49 (8th Cir.1990). The court concluded that the procedural bar had thus been removed and the Swain claim revived. However, the Missouri Supreme Court subsequently entered an order clarifying that it previously ruled on state procedural grounds. This order, along with a finding that Byrd never did in fact bring his Swain claim before the state courts, caused the panel to vacate its stay and brings the matter before the court en banc.

Analysis

This court recently applied the ends of justice exception in an analogous situation in Pilchak v. Camper, 935 F.2d 145 (8th Cir.1991) (Beam, J.). The petitioner in that case proved that her jury had been unconstitutionally selected when the Sheriff hand-picked the jurors for her case. Petitioner defaulted on this claim but this court held that applying the procedural bar would be unjust. The court stated that "[t]here are times ... that justice requires a more expansive and compassionate application of the rules." Id. at 148.

Byrd has made a prima facie case of racial discrimination in the selection of his jury. His evidence that the county prosecutor systematically excluded blacks from juries is indistinguishable from that of the Sheriff hand-picking jurors in Pilchak. Although this court often finds that procedurally barred claims are non-meritorious anyway, it is a rare case when the court knowingly refuses to consider a meritorious claim.

This is not a clear-cut case of procedural bar. Byrd has raised a jury-selection claim in each habeas petition and before the state courts. There is some confusion as to whether the claim was brought under Batson or Swain, but the principle behind procedural bar--that the state should have opportunity to pass on the claim and that petitioners should bring forward all their claims initially--that principle has been met here.

The Supreme Court has stated that "discrimination on account of race in the administration of justice strikes at the core concerns of the Fourteenth Amendment and at fundamental values of our society and legal system." Rose v. Mitchell, 443 U.S. 545, 564, 99 S.Ct. 2993, 3004, 61 L.Ed.2d 739 (1979). "The risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence." Turner v. Murray, 476 U.S. 28, 35, 106 S.Ct. 1683, 1688, 90 L.Ed.2d 27 (1986) (White, J.).

Particularly in a capital proceeding, with an execution imminent, this court is obligated to consider whether execution of the petitioner will constitute a miscarriage of justice. That analysis has not been presented in any written opinion of the state or federal courts. In light of the prima facie case and the vulnerability of the jury system to bias and prejudice, this court en banc should grant at least a stay to consider the Swain issue and ensure that a miscarriage of justice does not take place this Friday, August 23, 1991.

ON MOTION FOR STAY OF EXECUTION

ARNOLD, Circuit Judge, joined by BEAM, Circuit Judge, concurring.

I concur in the denial of the motion for stay of execution, as well as the suggestion for rehearing en banc. As the author of the most recent panel opinion, I desire to add a few words of explanation in view of the points made by the dissent.

The dissenting opinion's principal reliance is on the contention that the panel opinion in the present case is in conflict with Pilchak v. Camper, 935 F.2d 145 (8th Cir.1991). In my view, Pilchak is distinguishable. There, the panel held, on the facts of the record before it, that the constitutional errors claimed had led to the imposition of a sentence (life without parole) that would not otherwise have been imposed on the petitioner. This is an entirely reasonable variation on the factual-innocence exception to the normal rules of procedural bar. The record in the present case does not support such an argument.

In fact, the main point made in the motion for stay of execution is that the existence of a Swain violation, in and of itself, renders a conviction fundamentally unjust and therefore eligible for an exception to the normal procedural-bar doctrine. This argument is squarely contrary to controlling Supreme Court precedent. The Supreme Court focuses on probable factual innocence, not the mere existence of a constitutional violation.

It is also worth noting that in Pilchak there were multiple constitutional violations. Not only did the Sheriff's office hand pick the jury, but defendant's counsel was suffering from Alzheimer's disease, which, the panel found, caused him to make the improvident decision to call Pilchak as a witness, thus opening the floodgates to extremely damaging rebuttal evidence.

For these reasons, I cannot agree that any supposed conflict with Pilchak supports either a stay of execution or a rehearing en banc.

 

 

 
 
 
 
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