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Doyle James WILLIAMS





Classification: Murderer
Characteristics: Robbery - Drugs
Number of victims: 2
Date of murders: October 6/10, 1980
Date of birth: October 25, 1947
Victims profile: Dr. A. H. Domann / Kerry Brummett
Method of murder: Shooting (.45 caliber automatic pistol) - Drowning
Location: Marion County, Missouri, USA
Status: Executed by lethal injection in Missouri on April 10, 1996

State of Missouri v. Doyle James Williams

652 S. W. 2D 102

Doyle James Williams was executed on April 10, 1996

Case Facts: 

In April 1980 Doyle Williams and John Morgan burglarized the medical offices of Dr. A. H. Domann in Auxvasse, Missouri taking, among other items, blank prescription pads.

Shortly thereafter, defendant and Morgan went to Morgan’s trailer home and in the presence of Kerry Brummett, discussed means of utilizing the prescription pads.

At that time, Brummett, who was Morgan’s roommate, saw the prescription pads which bore Dr. Domann’s name. Later in the day, defendant made an effort to pass forged prescriptions in a Columbia drug store, but was caught, arrested and charged and later convicted of attempt to obtain a controlled substance by fraud.

Faced with the charge arising from the forged prescription, defendant was convinced he could "beat the rap" and confided to Morgan that he could avoid conviction "if the doctor didn’t testify that he hadn’t signed the prescription" – a presage for the death of Dr. Domann.

Sometime later, on October 7, 1980, Williams revealed to Morgan that he had killed Dr. Domann and placed his body in a Callaway County clay pit. On October 8, 1980 defendant suggested that Kerry Brummett should meet the same fate as Dr. Domann in retribution for having testified against Morgan in forgery charge proceedings.

The next day, October 9, 1980 Betty Coleman, a friend of Doyle Williams arranged for a date with Kerry Brummett in Jefferson City. She drove the unsuspecting Brummett to a deserted area in Callaway County adjacent to the Missouri River for an early morning rendezvous with Morgan and Williams.

Brummett was dragged from the auto by Williams and Morgan. They beat and kicked Brummett about the head and body. Williams used a .357 Magnum to beat Brummett. Using a pair of handcuffs he had previously borrowed from a Auxvasse police officer friend, Williams, with Morgan’s help, was able to bind Brummett’s hands behind his back and force him, bleeding and dazed, into the trunk of Coleman’s auto.

Brummet was then driven to a location near the river bank and pulled from the car. Morgan obtained a bumper jack and rope to serve as a body weight. Williams continued his bodily attack on the handcuffed victim, striking him in the back and sending him stumbling down the riverbank toward the Missouri River. Brummett continued to resist and assured the men he would not testify against them.

Brummett ran directly into the river and, still handcuffed, sank beneath the surface, able to rise twice. As Brummett surfaced for the second time, Williams ordered Morgan to shoot him. Morgan responded by firing over the victim’s head. Williams made an attempt to retrieve the body and remove the handcuffs which could be traced, but he failed in his effort. The body was retrieved seven days later on a sandbar.

Cause of the victim’s death was drowning. His scalp had been lacerated by a blunt instrument. At the point of assault, the victim’s eye glasses and plastic name tag were found. Brummett’s gold chain, traces of the victim of blood, hair and the brand of cigarettes smoked by him were found in the car used by defendant and Morgan.

Defendant was convicted when Morgan later testified against him.

Legal Chronology

06/29 - (Baltimore, Maryland) Williams pled guilty to Interstate Transportation of a Stolen Motor Vehicle and received a sentence of 2 – ˝ years probation.

06/02 - Willaims pled guilty in Greensboro, North Carolina to Interstate Transportation of a Stolen Vehicle. He received suspended imposition of sentence and was placed on one year probation to run consecutive with sentence on Jun 29, 1967.

09/27 - Williams pled guilty to eleven counts of Interstate Transportation and Concealment of Stolen Motor Vehicles. Willaims was paroled from this confinement on November 20, 1978. That parole was revoked in October of 1980.

4/? - Doyle Williams and John Morgan burglarized the office of Dr. A.H. Domann and stole blank prescription pads. Morgan’s roommate Kerry Brummett sees the pads and hears Williams and Morgan discussing their use. Later the same day, Williams is arrested attempting to obtain drugs using prescriptions forged on the pads. Williams tells Morgan that he can "beat the rap" if Dr. Domann does not testify.
10/6 – Williams murders Dr. Domann.
10/7 – Williams tells Morgan that he has killed Dr. Domann and dumped the body in a clay pit (Williams was convicted of this murder in a separate trial and the conviction was affirmed on appeal. See State v. Williams, 662 S.W.2d 277 (Mo.App., E.D. 1983))
10/8 – Williams suggests to Morgan that they should kill Kerry Brummett.
10/9-10 – Williams and Morgan murder Kerry Brummett.

04/06 – Williams is charged with the murder of Kerry Brummett.
07/16 - Williams was sentenced to life for Attempting to Obtain a Controlled Substance by Fraud.
09/14 – Williams is tried by a jury on a change of venue in Clay County for the murder of Kerry Brummett. The jury convicts Williams and recommends a sentence of Death.
11/13 – The trial court denies Williams’ motion for new trial and sentences him to death.

01/29 - Williams received a sentence of life imprisonment in Marion County for the death of Dr. A. H. Domann. This sentence to run consecutively with any other sentence.

5/31 – The Missouri Supreme Court affirms Williams’ conviction and sentence.

3/2 – Williams’ initial habeas corpus petition is dismissed for failure to exhaust state remedies.
3/21 – Williams files a motion seeking relief under Missouri Supreme Court Rule 27.26.

3/27 – The Rule 27.26 motion is denied by the Circuit Court of Clay County following an evidentiary hearing.
6/6 – The Eighth Circuit U.S. court of Appeals affirms the dismissal of the first federal habeas corpus petition.

5/15 – The Missouri court of Appeals, Western District, affirms the denial of the Rule 27.26 motion.
7/21 – Williams files his second federal habeas corpus petition.

2/9 – The United States district Court denies Williams’ second federal habeas corpus petition.

12/7 – A three judge panel of the Eighth Circuit Court of Appeals grants the writ of habeas by a 2-1 vote

8/15 – The Eighth Circuit Court of Appeals sitting en banc by an 8-2 vote vacates the opinion and judgment of the three judge panel and affirms the denial of the writ of habeas corpus by the United States District Court.

1/30 – Williams files a state habeas corpus petition in the Circuit Court of Washington County.
2/15 – The state habeas corpus petition is transferred to the Missouri Supreme Court.
3/5 – The state habeas corpus to petition is denied.
3/14 – Petitioner files his third federal habeas corpus petition.
8/1 – Williams files a motion to recall the mandate in the Missouri Supreme Court.
10/8 – The motion to recall the mandate is denied.

3/2 – Williams files and amended version of his third federal habeas corpus petition.

4/28 – A United States Magistrate issues a 120-page report and recommendation finding after extensive analysis that all the grounds raised were either an abuse of the writ, or abusive of the writ and defaulted, or successive in that they have previously been rejected on their merits in earlier litigation, or not cognizable in a federal habeas corpus petition.

1/11 – The United States District denies the third federal habeas corpus petition.
1/19 – The United States District court denies the third federal habeas corpus petition.
2/28 – The Missouri Supreme Court sets Williams’ execution date for April 10, 1996
3/8 – A three judge panel of the Eighth Circuit Court of Appeals grants a stay based on a Williams’ motion for a certificate of probable cause.
4/4 – The Eighth Circuit Court of Appeals en banc denied the state’s motion for a rehearing of stay and motion to vacate the stay.
4/9 – The United States Supreme Court grants the state’s motion to vacate the stay.



U.S. Supreme Court

WILLIAMS v. MISSOURI , 463 U.S. 1301 (1983)

463 U.S. 1301

State of MISSOURI.

No. A-1077.

July 6, 1983.

Justice BLACKMUN, Circuit Justice.

On May 31, 1983, the Supreme Court of Missouri affirmed applicant Williams' conviction and death sentence. It noted applicant's execution as set for July 15. On June 30, the Missouri Supreme Court denied applicant's timely motion for rehearing, and his motion requesting that court to stay issuance of its mandate pending final disposition of a petition for certiorari in this Court. Under the rules of this Court, applicant has until August 29, 1983, to file a petition for certiorari. He has applied to me for a stay of execution pending timely filing and disposition of that petition. The application is granted.

    "[D]irect appeal is the primary avenue for review of a conviction or sentence." Barefoot v. Estelle, ___ U.S. ___, ___, 3391, 75 L.Ed.2d ___ (1983). If a federal question is involved, the process of direct review "includes the right to petition this Court for a writ of certiorari." Ibid. A stay of execution obviously is essential to realization of this right if the execution otherwise would occur prior to the expiration of a defendant's time to petition this Court for direct review. The defendant must have at least one opportunity to present to the full Court his claims that [463 U.S. 1301 , 1302]   his death sentence has been imposed unconstitutionally. For this reason, if a State schedules an execution to take place before filing and disposition of a petition for certiorari, I must stay that execution pending completion of direct review, as a matter of course.



763 F.2d 363

Doyle J. WILLIAMS, Appellant,
Donald WYRICK, Appellee.

No. 84-1649.

United States Court of Appeals,
Eighth Circuit.

Submitted Jan. 15, 1985.
Decided June 6, 1985.

Before BRIGHT, ARNOLD, and BOWMAN, Circuit Judges.


Doyle James Williams, a state prisoner under sentence of death for capital murder, appeals from the district court's1 dismissal of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 for failure to exhaust available state remedies.

For reversal, Williams argues that he satisfied the exhaustion requirement by filing motions to recall the mandate in the Missouri Supreme Court. Alternatively, Williams contends that even if he failed to exhaust state remedies, the district court should have entered a stay of execution and retained jurisdiction while litigation proceeded in state court. We affirm the dismissal of the writ.


In September 1981, a jury found Williams guilty of capital murder and sentenced him to death. The Missouri Supreme Court affirmed his conviction and sentence. State v. Williams, 652 S.W.2d 102 (Mo.1983). Thereafter, Williams filed the present petition for a writ of habeas corpus. As amended, his petition asserts six grounds for relief. In its response to the petition, the State pointed out that Williams had failed to exhaust available state remedies on all grounds presented as required by Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

At that point, with his habeas petition pending, Williams filed three pro se motions to recall the mandate in the Missouri Supreme Court. In the first two motions, Williams alleged that he was denied effective assistance of counsel on direct appeal because his attorney failed to raise several of the constitutional violations Williams now asserts in his habeas petition. In his third motion, Williams asked the Missouri Supreme Court to consider all points of error presented in his amended habeas petition.

The Missouri Supreme Court summarily denied all three motions without comment in separate one-line orders. Williams then argued in district court that he had satisfied the exhaustion requirement of section 2254 because he had presented all grounds asserted in his habeas petition to the Missouri Supreme Court either on direct appeal or in one or more of his motions to recall the mandate.

In an order entered on March 2, 1984, the district court held that Williams had exhausted two of the claims in his amended habeas petition by presenting them to the Missouri Supreme Court on direct appeal, but that he had failed to exhaust state remedies on his four remaining claims.2

The court rejected Williams' contention that his motions to recall the mandate, summarily dismissed by the state supreme court, were sufficient to satisfy the exhaustion requirement. Noting that Rose v. Lundy, supra, requires federal courts to dismiss state habeas petitions containing both exhausted and unexhausted claims, the court dismissed Williams' mixed petition without prejudice. This appeal followed.


A. Exhaustion.

Williams argues that the district court erred in dismissing his petition because he fairly presented all of his federal constitutional claims to the Missouri Supreme Court and gave that court a fair opportunity to consider the merits of his claims. Relying on language in State v. Thompson, 659 S.W.2d 766, 769 (Mo.1983) (en banc), recognizing "that a mandate may be recalled in order to remedy a deprivation of the federal constitutional rights of a criminal defendant," Williams contends that he used proper state procedure to exhaust the constitutional claims not raised on direct appeal.

In rejecting this argument, the district court concluded that in Thompson, the Missouri Supreme Court did not approve the use of motions to recall the mandate as a vehicle for presenting the merits of all constitutional claims not raised on direct appeal.

Rather, Thompson reiterates the long-recognized and limited uses of that remedy, for example, where the appellate court has the unique knowledge necessary to dispose of a claim of ineffective assistance of appellate counsel, or where a conflict exists between a decision of a Missouri appellate court and the United States Supreme Court. See id.; Morris v. State, 603 S.W.2d 938, 941 (Mo.1980) (en banc). See also Tyler v. Wyrick, 730 F.2d 1209, 1210 (8th Cir.) (per curiam), cert. denied, --- U.S. ----, 105 S.Ct. 138, 83 L.Ed.2d 78 (1984).

This court gives great weight to the conclusions of district judges on questions of state law. Bergstrom v. Sambo's Restaurants, Inc., 687 F.2d 1250, 1255 (8th Cir.1982); Noll v. People of State of Nebraska, 537 F.2d 967, 969 n. 3 (8th Cir.1976).

Moreover, we agree with the district court that Williams' motions to recall the mandate were neither an appropriate nor adequate means of exhausting state remedies with respect to all the claims asserted in his habeas petition. The established Missouri procedure for obtaining post-conviction relief is to file a motion pursuant to Missouri Supreme Court Rule 27.26. Williams' motions to recall the mandate were, as the district court noted, an apparent attempt to circumvent the Rule 27.26 procedure.3

Nor can we say, in the circumstances, that the Missouri Supreme Court based its unexplained summary denial of Williams' motions on an evaluation of the merits of his claims, rather than on procedural grounds. See White v. Wyrick, 432 F.Supp. 1316, 1317 (W.D.Mo.1977), aff'd, 651 F.2d 597 (8th Cir.), cert. denied, 454 U.S. 1058, 102 S.Ct. 608, 70 L.Ed.2d 596 (1981) (suggesting that the state court's summary disposition was probably on procedural grounds). Accordingly, we find no error in the district court's dismissal of Williams' petition for failure to exhaust state remedies.

B. Retaining Jurisdiction in Federal Court.

Alternatively, Williams argues that even if he failed to exhaust state remedies, the district court should have entered a stay of execution and retained jurisdiction while litigation proceeded in the state courts. Although, as petitioner notes, federal courts may retain jurisdiction and hold a case in abeyance pending exhaustion of state remedies, see, e.g., Collins v. Lockhart, 707 F.2d 341, 344 (8th Cir.1983), they are not required to do so. It is not apparent from the record before this court that the state has set an execution date in this case, and, in any event, Williams does not deny that the Missouri Supreme Court has available procedures for obtaining stays of execution pending completion of post-conviction proceedings. We believe this is a matter appropriately handled by the state courts at this juncture.

Accordingly, we affirm the district court's dismissal of this action.



The Honorable D. Brook Bartlett, United States District Judge for the Western District of Missouri


The district court pointed out that Williams had presented two of the unexhausted claims on appeal as trial errors only, not as federal constitutional violations, and that he had not raised the other two grounds on direct appeal in any form


The record before the court reflects that Williams now has a Rule 27.26 motion pending in the state courts, which includes claims asserted in his habeas petition as well as a number of additional claims


834 F.2d 152

Doyle J. WILLIAMS, Appellant,
Honorable Ronald R. McKENZIE, Appellee.

No. 86-2523.

United States Court of Appeals,
Eighth Circuit.

Submitted Oct. 16, 1987.
Decided Dec. 2, 1987.

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

LAY, Chief Judge.

Doyle J. Williams appeals from the magistrate's order entered pursuant to 28 U.S.C. Sec. 636(c)(3) (1982) dismissing with prejudice his complaint filed under 42 U.S.C. Sec. 1983 (1982) against a Missouri circuit (trial) judge. We affirm.

Williams was convicted of capital murder in the Circuit Court of Marion County, Missouri. County Public Defender Thomas R. Motley was appointed to represent Williams on appeal. Based upon alleged deficiencies in the criminal proceeding, Williams then filed a civil action against Motley seeking money damages and requesting that Motley be barred from practicing law. Judge McKenzie, the presiding state judge, granted Williams leave to proceed in forma pauperis in the civil action. Following the submission of pleadings and a hearing, Judge McKenzie dismissed the action with prejudice on the ground that Williams failed to state a claim. Williams thereafter attempted to file a civil rights action in state court against Motley under 42 U.S.C. Secs. 1983, 1985(2), (3), and 1985, primarily alleging the same claims he had alleged in the previous lawsuit. Williams presented an additional claim of conspiracy between Motley and the county prosecutor. Judge McKenzie denied Williams' motion to proceed in forma pauperis and ordered that the clerk not accept the filing without payment of the filing fee.

Williams then commenced this section 1983 action in federal district court against Judge McKenzie alleging that Judge McKenzie had denied him access to the courts and sought to enjoin the judge from denying him this access. The federal district court, adopting the magistrate's report and recommendation, dismissed the action for failure to state a claim. On appeal, although this court concluded that Judge McKenzie was immune from suit under section 1983 for money damages, we remanded the action for a determination of whether injunctive relief would be appropriate to prevent the state judge from barring petitioner from access to the state court. Williams v. McKenzie, 774 F.2d 1171 (8th Cir.1985). Following a bench trial, United States Magistrate Noce entered judgment for Judge McKenzie and dismissed the cause with prejudice, on the grounds that the evidence showed Judge McKenzie had denied Williams' motion to proceed in forma pauperis because the lawsuit was frivolous, malicious, and duplicative of prior actions.

On appeal Williams maintains that the federal district court erred in not granting injunctive relief in that it was constitutional error for the state trial judge to deny Williams access to the state court. Petitioner asserts that he alleged the denial of a fundamental right in the state court, to wit, the right to adequate and effective assistance of counsel on appeal. He also alleges the state court cannot deprive him of access to the courts because of his indigency.

The grounds of petitioner's appeal are not clear. First, petitioner is incorrect if he seeks to have this court review whether he stated a proper cause of action in his state court suit against Motley. We do not have jurisdiction to pass on the merits of a claim which was dismissed by the state court or to determine whether a state trial court erred in dismissing a claim for failing to state a cause of action. This is true even though the second state suit against Motley was based on the federal civil rights statutes under sections 1983 and 1985. Federal courts are not courts of review even for federal claims asserted in a state court proceeding. In fact this court must give full faith and credit to the state court judgment. 28 U.S.C. Sec. 1738 (1982); compare University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986).

Second, Williams seemingly asserts that the state trial court erred in dismissing his claim without his paying a filing fee because he was indigent. We disagree. Under Mo.Rev.Stat. Sec. 514.040 (1978), the State of Missouri gives the state trial court discretion to deny leave to proceed in forma pauperis where the State's interest is in not allowing legally frivolous or malicious litigation to proceed in its courts.1 See State ex. rel. Coats v. Lewis, 689 S.W.2d 800 (Mo.App.1985). This interest is constitutionally paramount to any interest of a plaintiff in pursuing legally frivolous or malicious litigation. See 28 U.S.C. Sec. 1915 (1982); Cameron v. Fogarty, 705 F.2d 676 (2d Cir.1983); Martin-Trigona v. Stewart, 691 F.2d 856 (8th Cir.1982); Hogan v. Midland County Com'rs Court, 680 F.2d 1101 (5th Cir.1982). An in forma pauperis litigant's access to the courts is a matter of privilege, not of right, and should not be used to abuse the process of the courts. Startti v. United States, 415 F.2d 1115 (5th Cir.1969); cf. Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir.1985).2

After examining the second complaint filed by Williams, Judge McKenzie properly determined that the lawsuit was facially frivolous and that Williams was attempting to abuse the process of the courts. Under section 514.040 the trial court acted within its discretion and no constitutional error may be asserted.

The judgment of the district court is affirmed.



Mo.Rev.Stat. Sec. 514.040 (1978) provides in pertinent part:

If any court shall, before or after the commencement of any suit pending before it, be satisfied that the plaintiff is a poor person, and unable to prosecute his or her suit, and pay the costs and expenses thereof, such court may, in its discretion, permit him or her to commence and prosecute his or her action as a poor person, and thereupon such poor person shall have all necessary process and proceedings as in other cases, without fees, tax or charge; and the court may assign to such person counsel, who, as well as all other officers of the court, shall perform their duties in such suit without fee or reward; but if judgment is entered for the plaintiff, costs shall be recovered, which shall be collected for the use of the officers of the court.


It would be helpful in future cases where a state judicial officer denies an indigent a certificate to proceed in forma pauperis because the court deems the suit to be legally frivolous to specifically state the grounds upon which the certification is denied

If the grounds for denial of the certificate had been set forth in the original order by the state court, the matter would not have required two federal appeals. The bare record on the first appeal to this court provided an inference that the state court was unconstitutionally denying the petitioner to proceed as an indigent.


877 F.2d 1376

Doyle J. Williams, Appellant,
Bill Armontrout, Warden, Appellee

United States Court of Appeals,
Eighth Circuit.

Submitted Dec. 16, 1988.
Decided June 20, 1989.
Rehearing and Rehearing En Banc Denied Aug. 7, 1989

Before ARNOLD, Circuit Judge, BRIGHT, Senior Circuit Judge, and John R. Gibson, Circuit Judge.

BRIGHT, Senior Circuit Judge.

Doyle Williams appeals the dismissal of his petition for writ of habeas corpus under 28 U.S.C. Sec. 2254. In these proceedings, he challenges his Missouri conviction for capital murder, resulting in a sentence of life in prison without possibility of parole for fifty years. Williams raises several issues in his appeal, including the admissibility of eyewitness identification testimony, the effectiveness of his trial counsel and allegations of misconduct by the State. We affirm.

On October 11, 1980, police recovered the body of Dr. A.H. Domann, who was last seen alive on October 6, 1980, from a clay pit north of Auxvasse, Missouri. Police found three .45 caliber bullets in Domann's body. In March of 1981, the State charged Williams with Domann's murder. A jury trial began the following October.

John Morgan testified that on October 7, 1980, Williams took him to the clay pit north of Auxvasse and told Morgan that he, Williams, had murdered Domann the day before. Morgan testified that Williams described the murder and following events in great detail. Morgan also testified that he and Williams had discussed killing Domann on several occasions in order to prevent Domann from testifying on a forgery charge against Williams.

Barbara Rea testified that Williams attended a party at her trailer home late in the day on October 5, 1980, at which Williams and other party guests fired weapons at a trash dump outside the trailer. Several party guests testified at trial. This testimony revealed that Williams brought to the party a briefcase containing several guns. At least one of those guns was a .45 caliber automatic pistol which party guest Randy Clardy fired, as did Doyle Williams. Betty Coleman, Williams' girlfriend, also possessed a .45 caliber automatic weapon which she fired at the party. Later, law enforcement officers recovered ten .45 caliber bullets and eight .45 caliber cartridge casings near the trash dump. Expert testimony at trial established that five of the expended bullets found at the dump were from the same gun that killed Domann. Further expert testimony excluded Betty Coleman's .45 caliber weapon as the gun used to kill the doctor. Police never recovered the murder weapon.

Jessie Purvis, a neighbor of Dr. Domann, testified that at approximately 5:45 a.m. on October 6, 1980, she saw Williams' white car in front of her house, just catercorner from Domann's house, on three separate occasions. Later that day, police officer Oscar Ross drove Purvis through Auxvasse, at which time she identified Doyle Williams' car as the car she had seen that morning. Purvis testified that she did not see a license plate on the front of the car. Officer Ross testified that Williams' car had only a rear license plate, none on the front.

Dedra Herdeg testified that on October 5, 1980, between 10:00 and 10:30 in the morning, while she worked as a clerk at a gas station convenience store, a man asked her for directions to Domann's house. At trial, Herdeg identified Williams as the person who sought directions from her. Williams claims that the admission of Herdeg's testimony violated due process because it was tainted by suggestive pretrial photo lineups and a suggestive hypnosis session.

Following trial, the jury convicted Williams of Domann's murder and sentenced him to life in prison without possibility of parole for fifty years. The Missouri Court of Appeals affirmed the conviction, State v. Williams, 662 S.W.2d 277 (Mo.Ct.App.1983), and subsequently denied him post-conviction relief, Williams v. State, 730 S.W.2d 284 (Mo.Ct.App.1987).

Williams then filed this petition for writ of habeas corpus, pursuant to 28 U.S.C. Sec. 2254, in the United States District Court for the Eastern District of Missouri. The district court denied the petition. This appeal followed.

Williams argues that Dedra Herdeg's in-court identification of him as the man who asked her for directions to Domann's house should be rejected as so unreliable as to violate his constitutional right to due process.

The State claims that Williams is procedurally barred from challenging Herdeg's in-court identification because Williams failed to contemporaneously object to the identification. However, on Williams' direct appeal from his conviction, the Missouri Court of Appeals exercised its discretionary power to determine whether plain error occurred and found that neither the hypnosis nor the lineup affected Herdeg's identification. State v. Williams, 662 S.W.2d at 281. Thus, the state court adequately undertook discretionary review of these claims and no procedural defect exists to bar federal review. See Engle v. Isaac, 456 U.S. 107, 135 n. 44, 102 S.Ct. 1558, 1575 n. 44, 71 L.Ed.2d 783 (1982).

Williams calls Herdeg's in-court identification so unreliable as to violate due process. Police first interviewed Herdeg on October 13, 1980, after learning that she had given someone directions to Domann's house on October 5, the day before the murder. At that time, police showed her seven photographs, five of men and two of women. Herdeg identified Williams as the man who asked directions to Domann's home. Only Williams' photograph, however, showed a man with glasses and a beard. Police displayed this same photospread to Herdeg on two separate occasions.

Sometime later, ostensibly in an attempt to help Herdeg remember and describe the automobile of the man who asked for directions, Herdeg permitted a police officer to hypnotize her. At the hypnosis session, a police officer showed her a photograph of Williams. Police displayed no other photographs to Herdeg, nor kept any sort of recording of the hypnosis session. The trial court granted Williams' motion to suppress the photographic lineup, but denied the motion to suppress any identification at trial.

Williams charges that the lineups and the hypnosis session violated his constitutional rights because those procedures served to impermissibly suggest Williams as the person having the conversation in question with Herdeg and led to her later in-court identification of Williams.

The first step in analyzing a due process challenge to an in-court identification is to determine whether the challenged confrontation between the witness and the suspect was impermissibly suggestive. Graham v. Solem, 728 F.2d 1533, 1541 (8th Cir.), cert. denied, 469 U.S. 842, 105 S.Ct. 148, 83 L.Ed.2d 86 (1984). The State admitted at trial the impermissibly suggestive nature of the photospreads shown to Herdeg. Nevertheless, the suggestiveness of a photospread alone does not require exclusion of the subsequent in-court identification. Id.; Neil v. Biggers, 409 U.S. 188, 198-99, 93 S.Ct. 375, 381-82, 34 L.Ed.2d 401 (1972).

The second step calls upon a court to determine whether, under the totality of the circumstances, the identification might stand as reliable even though the initial out-of-court identification procedure contained suggestive elements. Graham, 728 F.2d at 1541; Neil, 409 U.S. at 199, 93 S.Ct. at 382. In Neil v. Biggers, the Supreme Court set forth five factors to consider in evaluating the likelihood of misidentification: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' prior description of the criminal, (4) the level of certainty demonstrated by the witness at the initial identification, and (5) the length of time between the crime and the initial identification. Id. at 199-200, 93 S.Ct. at 382.

Herdeg viewed the person who asked her for directions. It was approximately 10 a.m. and she was speaking to him, attempting to give directions. Ample opportunity existed for viewing the person. The circumstances disclose a likely degree of attention. Only she served as the attendant at a gas station convenience store. Herdeg testified that Williams asked for directions to the Domann house on October 5. She first picked Williams' picture out of the photo display on October 13. A delay of merely eight days between the time Herdeg saw the man who asked for directions and Herdeg's first identification of him does not significantly undermine the reliability of the identification.

These factors positively supporting proper identification, however, are outweighed on evaluation of the remaining factors, i.e., the accuracy of Herdeg's prior description of the man who asked for directions and the level of certainty she demonstrated at the time of the initial identification. The record does not show that Herdeg gave any description of the person prior to being shown the photographs. At the hypnosis session, however, she described the man as not wearing glasses. Williams wears glasses. The record is unclear as to the degree of certainty Herdeg evinced when she picked Williams' picture out of the photo display. However, even if we assume that she was fairly certain, the only photograph in the lineup of a man with a beard was the photo of Williams, thus diminishing the value of any certainty Herdeg may have evinced. Furthermore, Williams attended a deposition taken of Herdeg. Defense counsel questioned Herdeg as follows:

Q. You are aware that Mr. Williams is sitting right here beside me, are you not, or are you?

A. No.

Q. Does that man look like the man in the picture?

A. There is a familiarity.

Even when seated face-to-face with Williams after the suggestive photo lineups and the hypnosis session, Herdeg could not positively identify Williams. It thus appears that Herdeg made positive identifications of Williams only in suggestive settings; i.e., at the impermissibly suggestive photo lineups and at trial where Williams was the known defendant.

The Neil v. Biggers analysis indicates that the totality of the circumstances surrounding Herdeg's identification suggests a substantial likelihood of misidentification. 409 U.S. at 198-99, 93 S.Ct. at 381-82. Moreover, the use of hypnosis to improve Herdeg's memory carries the risk of highly suggestive hypnosis procedures which adds to the likelihood of a misidentification.

Several problems are associated with refreshing recollections by hypnosis. In Sprynczynatyk v. General Motors Corp., 771 F.2d 1112, 1119-20 (8th Cir.), cert. denied, 475 U.S. 1046, 106 S.Ct. 1263, 89 L.Ed.2d 572 (1985), this court recognized that hypersuggestibility and hypercompliance on the part of the subject may flaw recollection under hypnosis. Hypnosis is also associated with confabulation, a tendency by the subject to be influenced by a need to fill in the gaps in his or her memory. After hypnosis, neither the hypnotist nor the subject can distinguish between real memories and pseudomemories confabulated under hypnosis. Furthermore, after hypnosis, the memory one has of an event, be it true or false, becomes hardened in the subject's mind. 771 F.2d at 1119-20. See Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 2712-14, 97 L.Ed.2d 37 (1987).

[T]he basic problem for the courts is that hypnosis does not insure the accuracy of the witness' recall. Quite often hypnotized persons produce more information following hypnosis, but it may be accurate or inaccurate and there is no scientific technique that can reliably discriminate between true or false details recounted during hypnosis.

Sprynczynatyk, 771 F.2d at 1120 (footnote omitted).

The police kept no memoranda or notes of the hypnosis session in which Herdeg participated. The record, however, indicates that a police officer who participated in the investigation of Domann's murder conducted Herdeg's hypnosis and during that session showed Herdeg a single photograph, that of Doyle Williams. Thus, consideration of the admittedly suggestive photospread, the absence of any positive verification of Williams' identification prior to trial and the showing of Herdeg's uncertainty in fact of her identification of Williams, together with an uncontrolled hypnotic session in which Herdeg could be highly influenced to identify Williams, leads to the conclusion that the in-court identification must be rejected on due process grounds. The highly suggestive incidents which we have discussed caused a very substantial likelihood of either misidentification or an identification resting not on the witness' own recollection but induced by impermissible suggestions.

Although we determine that the identification testimony was error, the determination does not justify relief under the facts of this case. In her testimony identifying Williams, Herdeg made reference to "they" when discussing who was in the car that stopped at the service station on October 5, thus suggesting that another person was with Williams when he asked Herdeg for directions. Williams defended himself at trial by arguing that Morgan committed the murder. Two defense witnesses testified at trial that Morgan, while in prison, had told them that he killed Domann and was going to frame Williams for the murder. In light of the entire record, the jury could conclude that Morgan accompanied Williams when Williams asked directions to Domann's residence. Thus, Herdeg's testimony did not erode Williams' defense and may even have bolstered it. Moreover, Herdeg's testimony cumulated the Purvis testimony placing a car Purvis later identified as Williams' vehicle in the vicinity of Dr. Domann's house on the morning of October 6. Purvis testified that she observed two people in that car. In light of Purvis' testimony identifying Williams' car near the Domann home on the morning of the murder, Herdeg's identification was in no way crucial to the State.

We conclude that Herdeg's identification of Williams would have made no difference in the trial--that such evidence alone did not contribute to the conviction and may have reinforced Williams' assertion that someone else, i.e., Morgan, killed Domann. Accordingly, we deny Williams' petition for habeas relief. The Herdeg identification testimony amounted to harmless error beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Lam v. Iowa, 860 F.2d 873, 876 (8th Cir.1988).

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the Supreme Court set forth a two-prong test for determining whether trial counsel's performance of his duties is so ineffective as to warrant reversal of a conviction. Williams must show, first, that his attorney's representation fell below an objective standard of reasonableness and, second, that his defense was prejudiced by his attorney's deficient performance.

Williams contends that he was denied his Sixth Amendment right to effective assistance of counsel at trial. He points to a number of areas where he alleges that his attorney's performance was deficient.

Williams contends that his attorney's failure to properly question John Morgan regarding Morgan's "deal" with the State and his prior inconsistent statements violated his Sixth Amendment right to effective assistance of counsel. The Missouri Court of Appeals addressed this issue on Williams' appeal of the denial of his petition for post-conviction relief and we are in complete agreement with its analysis of the issue.

Specifically movant challenges Marshall's failure to cross-examine Morgan on his "deal" with the state and on his prior inconsistent statements. Marshall readily acknowledged that his strategy, discussed with and concurred in by movant, was to avoid these areas in cross-examination of Morgan. He concentrated instead on Morgan's heavy drug addiction. This, combined with expert testimony as to the effects of such addiction on Morgan's mental condition, was designed to convince the jury of Morgan's unreliability as a witness and to frame the possibility of Morgan as the sole murderer.

Marshall had observed the Brummett trial* and three other trials in which exploration of the "deal" and inconsistent statements had been unsuccessful in producing an acquittal. He was also aware that in the Brummett trial, Williams' participation in the killing of Domann had come before the jury and the jury had assessed the death penalty. The matter of the "deal" was the subject of questioning during the voir dire examination of the Domann jurors. The jury was aware therefore that Morgan was testifying in exchange for a promise of non-prosecution. Morgan's prior criminal record was brought out during his direct examination by the state. Marshall based his cross-examination upon his concern that by "opening the door" concerning the deal he would allow the prosecution to carry across the threshold a complete recitation of the crimes for which Morgan would not be prosecuted, including the murder of Brummett and the burglary of Domann. He also wanted to avoid establishment of the closeness between Williams and Morgan and their frequent activities together as it would strengthen a jury's perception that if Morgan did participate in Domann's murder he did so with Williams. These same concerns were present as regards the prior inconsistent statements. * * * As a result of Marshall's strategy, the jury was aware during the trial, including the punishment phase, only of Williams' complicity in the attempt to obtain a controlled substance by fraud. It imposed the lesser of the two punishments available to it.

We do not find anything about the choice of strategy unreasonable. * * *

Williams challenges his attorney's actions on the basis that exploration of the deal and the inconsistent statements would not have opened the door to testimony concerning his involvement in other crimes. * * * Clearly the nature and number of crimes for which Morgan was not to be prosecuted was relevant on the issue of his credibility. How far such an examination will be permitted to go in exploring the full scope of the deal is largely within the discretion of the individual trial court. * * * The door which Marshall feared opening could not have been closed if the judge determined during redirect that he would allow full exploration of the deal or the circumstances surrounding the inconsistent statements. The information which might have been brought through that door could well have insured a death penalty. In fact movant stated that very argument in his appeal of his death penalty in the Brummett case. [State v. Williams, 652 S.W.2d 102 (Mo. banc 1983).] It would be difficult indeed to conclude that counsel was ineffective in eschewing a strategy that proved unsuccessful in the death case when the different strategy pursued resulted in a lesser sentence here. We find nothing unreasonable about Marshall's strategy in carefully avoiding even cracking the door. We must defer to his judgment.

Williams v. State, 730 S.W.2d at 287-88.

Williams argues that his attorney failed to properly cross-examine Kay Lepley and bring before the jury her "deal" with the State and her prior inconsistent statements. Lepley testified that she attended the shooting party at Barbara Rea's trailer where she observed Williams remove two guns from a briefcase and fire shots into the trash pile. The State had an agreement with Lepley that, in exchange for her testimony, it would not prosecute her for possession of a ruby ring stolen earlier from Domann's home by Williams and Morgan. The decision not to bring the agreement before the jury appears to rest on sound strategic reasons, the same reasons Williams' attorney did not cross-examine John Morgan on his non-prosecution agreement with the State. Counsel did not want to disclose to the jury the close relationship between Morgan and Williams or their criminal history together. As the state court noted, Williams' attorney utilized this strategy for good reasons and thus it does not amount to ineffective assistance of counsel.

In any event, any failure to further cross-examine Lepley also must be deemed harmless error. Lepley's testimony merely duplicated or corroborated the testimony of Randy Clardy and Barbara Rea about the shooting party on October 5, 1980. Thus, Williams cannot demonstrate, as required by Strickland v. Washington, prejudice resulting from the alleged deficiency in his attorney's cross-examination of Lepley.

Williams claims that his attorney's performance violated Sixth Amendment standards of reasonableness when he failed to object to the illegal search and seizure of Williams' car. The search turned up a .45 caliber Federal brand cartridge, the same brand used to kill Domann. The State placed the cartridge into evidence at trial.

Williams first contends that police officers lacked jurisdiction to obtain the warrant to search Williams' car. The state court, however, ruled to the contrary, and we defer to its reasoning on this issue.1 See Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 2683-84 n. 3, 97 L.Ed.2d 1 (1987) (in federal habeas corpus proceedings, the federal court is bound by state court interpretation of state law).

Williams also objects to the affidavit of John Morgan underlying the application for a search warrant as being too vague to support the issuance of the warrant. We have reviewed Morgan's affidavit and determine that it presents sufficient facts to permit a finding of probable cause under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Williams failed to demonstrate that Morgan, either knowingly and intelligently, or with reckless disregard for the truth, intended to make any false statement in the affidavit. Id. at 155-56, 98 S.Ct. at 2676.

Finally, Williams' contention that police conducted a generalized exploratory search is without merit. Williams argues that police officers were not interested in searching for drugs in Williams' car, but, rather, were looking for evidence which might link Williams to Domann's murder. However, Williams provides no evidence that police were engaged in an exploratory search. His argument, that police used the search for drugs in Williams' car as a way to obtain evidence in its investigation of Domann's murder, rests on speculation. Morgan's affidavit sufficiently demonstrated probable cause to believe the automobile carried drugs. Police thus conducted a legal search pursuant to a validly obtained warrant.

In any event, the admission of the cartridge into evidence alone did not substantially prejudice Williams. The State presented overwhelming evidence otherwise implicating Williams' .45 automatic pistol as the probable murder weapon. Expert testimony at trial revealed that Federal brand cartridges are common. The discovery of a single .45 caliber Federal brand cartridge in the trunk of Williams' automobile added little weight to the prosecution's case.

The State advised Williams' attorney that John Morgan had been granted immunity for crimes that took place outside of Callaway County. Williams argues, however, that the prosecutors of the other counties in which the crimes occurred never granted such immunity. This false disclosure, he contends, prejudiced Williams because it would, in some way, have affected the way his attorney questioned Morgan. We again defer to the state court's determination of the applicable state law.2

At the hearing on Williams' motion for new trial, Barbara Rea testified that police in the Major Case Squad investigating Domann's murder threatened to take her child away from her. Williams contends that this threat alone requires reversal of his conviction because Rea could have refuted Herdeg's identification of Williams at the gas station the morning before the murder.3 Williams claims that he was at Barbara Rea's home, some fifty miles from the gas station, on October 5, 1980, at 9 a.m., the same time Herdeg testified Williams had asked her for directions. Rea, however, testified that although Williams visited at her home on October 5, she could not state the time of that visit with any certainty.

Williams suggests that if Rea had not been threatened, she would have remembered that Williams was at her home at 9 a.m. on October 5, 1980, thus undercutting Herdeg's identification. However, as discussed earlier in this opinion, admission of Herdeg's identification constituted harmless error. Williams has not established that the coercion, if any, affected the testimony of Barbara Rea and we therefore reject this claim.

Williams also argues that his attorney's failure to cross-examine Rea concerning the threats by the State amounted to ineffective assistance of counsel. Williams, however, failed to demonstrate that his attorney knew of the alleged threats prior to trial. Thus, a failure to cross-examine Rea on this issue cannot be deemed ineffective assistance of counsel.

In accordance with the foregoing, we affirm the judgment of the district court denying Williams' petition for writ of habeas corpus.


JOHN R. GIBSON, Circuit Judge, concurring specially.

I concur in the judgment of the court today. I am in agreement with the analysis the court makes with only one exception. I believe that discussion of the hypnosis procedures is not necessary to reach the conclusion that the identification of Williams by Dedra Herdeg fails the Neal v. Biggers analysis. I would leave to another day further consideration of the hypnosis issue.



Movant also contends that the state illegally obtained evidence by use of fraud. This is based upon movant's conclusion that members of the major case squad lack the authority to act as police officers outside the county for which they work. Sec. 57.111 RSMo 1979 authorizes temporary commissions. There was evidence that it is standard practice for major case squad members to be given temporary commissions in the county wherein they are working. We believe such authority is inherently bestowed by the acts of the sheriffs in each county agreeing to the formation of the major case squad initially

Williams v. State, 730 S.W.2d at 288-89.


Movant's points, five in number, alleging prosecutorial misconduct are similarly lacking in merit. The main issue raised is that the prosecution misled movant and his attorney into believing that Morgan had received freedom from prosecution for all crimes he disclosed including those committed outside Callaway County, the county of the prosecutor making the "deal". It is contended this misinformation prevented movant from cross-examining Morgan as effectively as he could have with the correct information. We do not find the evidence compelling that in fact other prosecutors had not agreed not to prosecute. But it makes no difference. The Callaway county prosecutor is an agent of the state. The agreement was by the state acting through the prosecutor. The state is bound by the deal and that includes prosecutors in other counties within the state. State v. Burson, 698 S.W.2d 557 (Mo.App.1985); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). There was no misleading by the prosecution

Williams v. State, 730 S.W.2d at 288.


The State contends that Williams never presented this claim to the trial court and, although presented to the appellate court, the state court dismissed it on procedural grounds rather than on the merits. The appellate court, however, stated, "[m]ovant's points, five in number, alleging prosecutorial misconduct are similarly lacking in merit." Williams v. State, 730 S.W.2d at 288. Thus, the state court ruled on the merits of the claim and Williams, therefore, is not barred from presenting it to this court


U.S. Supreme Court

BOWERSOX v. WILLIAMS, ___ U.S. ___ (1996)



No. A-828.

April 9, 1996


Doyle J. Williams is scheduled to be executed by the State of Missouri on April 10, 1996. On January 11, 1996, a Federal District Court denied Williams' third federal habeas corpus petition, finding all of Williams' claims to be abusive, successive, or procedurally defaulted. On March 8, 1996, the United States Court of Appeals for the Eighth Circuit entered a summary order staying Williams' execution. The Court of Appeals scheduled oral argument for May 13, 1996, and resolved that the stay would remain in effect pending submission of the case and that Court's further order. The summary order gives no explanation for the Court of Appeals' conclusion that oral argument is necessary or that entry of a stay was appropriate. The Court of Appeals denied a petition for rehearing en banc, and we now have before us an application to vacate the stay.

    "A stay of execution pending disposition of a second or successive federal habeas petition should be granted only when there are `substantial grounds upon which relief might be granted.'" Delo v. Stokes, 495 U.S. 320, 321 (1990) (per curiam) (quoting Barefoot v. Estelle, 463 U.S. 880, 895 (1983)). Entry of a stay on a second or third habeas petition is a drastic measure, and we have held that it is "`particularly egregious'" to enter a stay absent substantial grounds for relief. Delo v. Blair, 509 U.S. 823 (1993) (citation omitted). On the record [ BOWERSOX v. WILLIAMS, ___ U.S. ___ (1996) , 2]   before us, we can discern no such grounds. We are persuaded by the report prepared by Magistrate Judge Hays, which meticulously addresses each of Williams' claims and finds each to be abusive, successive, procedurally defaulted, or meritless, and by the District Court's order adopting that report, in which the District Court also denied Williams' dilatory motion to amend the habeas petition. The Court of Appeals abused its discretion by entering a stay on this record.

To the extent the Court of Appeals discerned substantial grounds for relief, it failed to reveal them in its summary order granting the stay. Although we hesitate to say that a Court of Appeals must, in every case, explain the basis for its entry of a stay, we see fit to remind the lower courts that entry of a stay without explanation is disfavored. Cf. Netherland v. Tuggle, 515 U.S. ___ (1995) (per curiam). When a court of appeals fails to articulate its reasons for granting a stay, we lose the benefit of that court's views and must resort to other portions of the record in evaluating whether to vacate the stay. In this case, the District Court's careful treatment of Williams' claims and the surface implausibility of those claims persuade us that the stay should not have been granted, and the Court of Appeals' summary order does not convince us otherwise.

Accordingly, the application to vacate the stay of execution is granted.

    It is so ordered.



I would deny the application to vacate the stay of Williams' execution. A diligent appellate court has granted a certificate of probable cause and scheduled this case for argument on May 13. Those actions signal to me the existence of reasons, not the absence of reasons, for granting a stay. At the very least, before acting irretrievably, this Court might have invited prompt clarification of the Court of Appeals' order. Appreciation of our own fallibility, and respect for the judgment of [ BOWERSOX v. WILLIAMS, ___ U.S. ___ (1996) , 3]   an appellate tribunal closer to the scene than we are, as I see it, demand as much.


82 F.3d 781

Doyle J. WILLIAMS, Petitioner,
Paul K. DELO, Superintendent, Respondent.

No. 96-1205.

United States Court of Appeals,
Eighth Circuit.

April 9, 1996.

Order Affirming District Court, Vacating Certificate of Probable Cause, and Denying Stay of Execution. Hon. Joseph Stevens U.S.D.C. Judge.

Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.

FAGG, Circuit Judge.

The district court denied Doyle J. Williams's third habeas petition and the Missouri Supreme Court scheduled his execution for April 10, 1996. Following the Supreme Court's order vacating this court's summary order granting Williams a certificate of probable cause and staying Williams's execution, Williams moves for a reasoned stay of execution or a ruling on the merits. This court carefully reviewed Williams's capital murder conviction six years ago, when Williams appealed the denial of his second federal habeas petition. See Williams v. Armontrout, 912 F.2d 924 (8th Cir.1990) (en banc). Because all the claims Williams raises now are abusive or successive and most of them are meritless, as well, we deny the relief sought by Williams.

Williams is not entitled to a certificate of probable cause unless he shows "the issues [in his petition] are debatable among reasonable [judges], a court could resolve the issues differently, or the issues deserve further proceedings." Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir.1994). Further, Williams is not entitled to a stay of execution unless there are substantial grounds for relief. Delo v. Stokes, 495 U.S. 320, 321, 110 S.Ct. 1880, 1881, 109 L.Ed.2d 325 (1990) (per curiam). Williams has not met either standard. First, Williams's claim that his trial counsel provided ineffective assistance during the penalty phase of Williams's trial is abusive, because Williams did not raise the claim in his second habeas petition. McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991).

Attempting to show cause and prejudice, Williams argues he did not attack the validity of his death sentence in the earlier petition because his conditions of confinement at the Missouri State Penitentiary (MSP) were so abysmal that he preferred dying to remaining in prison. Williams presented evidence that he did not give his counsel permission to challenge his death sentence until 1989, after Williams was transferred to a different prison. Williams's second habeas petition came before this court en banc in 1990, after Williams's transfer, but Williams did not tell the en banc court that his past conditions of confinement had prevented him from raising an ineffective assistance claim, and Williams did not request a remand to the district court so he could raise the claim. In our view, Williams has not excused his abuse of the writ.

Williams's argument about his conditions of confinement makes no sense, anyway. Williams claims he was too miserable and hopeless to raise a legitimate challenge to his death sentence, but undisputed evidence in the record shows Williams filed grievances and civil rights lawsuits in an attempt to improve his living conditions at the MSP. Williams also represented to the district court that Williams had raised all legitimate challenges to his death sentence. Accordingly, the district court found the prison conditions did not cause Williams to omit claims from his second habeas petition. The district court's finding is not clearly erroneous, and thus Williams's cause argument could not succeed on appeal. Contrary to Williams's contention, the district court was not required to accept the opinion of Williams's expert witnesses. The district court was entitled to give more weight to Williams's own actions and earlier statements about the prison conditions.

Williams also cannot prevail on his claim that the state trial court violated his due process rights by failing to instruct the jury on first degree felony murder. Because Williams raised this claim in his second habeas petition and received a thorough review on appeal, Williams, 912 F.2d at 928-30, the claim is successive. See Sawyer v. Whitley, 505 U.S. 333, 337-39, 112 S.Ct. 2514-18, 120 L.Ed.2d 269 (1992); Shaw v. Delo, 971 F.2d 181, 184 (8th Cir.1992). Williams asserts the "ends of justice" require us to re-evaluate the claim in light of some new Missouri cases. He is wrong. The miscarriage of justice exception does not apply because Williams only asserts legal innocence, not actual innocence. Schlup v. Delo, --- U.S. ----, ----, 115 S.Ct. 851, 864, 867, 130 L.Ed.2d 808 (1995); Ruiz v. Norris, 71 F.3d 1404, 1409-10 (8th Cir.1995). Williams's claim about the first degree felony murder instruction is meritless at any rate. The state trial court concluded the trial evidence did not show an underlying felony independent of the murder and thus did not support the proposed instruction. The new cases Williams cites do not undercut the trial court's persuasive state law determination.

Further, we cannot review Williams's abusive claim that the trial court violated due process and equal protection by not giving a jury instruction on second degree felony murder. Even if Williams could persuade us that he raised this claim to the en banc court during his appeal on his second habeas petition, we would still conclude the claim is abusive because Williams did not present it to the original panel in the earlier appeal and the en banc court properly chose not to address the abandoned claim. Besides, if Williams thought the en banc court was required to consider the claim, he should have said so in a motion for rehearing en banc. Williams blames his counsel in the earlier habeas proceedings for not properly preserving the claim, but ineffective assistance of habeas counsel is not cause. Moreover, to the extent Williams claims a due process violation, his claim is foreclosed by Driscoll v. Delo, 71 F.3d 701, 714-15 (8th Cir.1995), and the cases Williams cites to support his equal protection claim do not involve similarly situated defendants and are unpersuasive.

Williams also contends the district court abused its discretion in denying Williams's motion to amend his habeas petition, but Williams is wrong. Williams moved to add a claim after his habeas petition had been pending for four years, discovery was complete, a magistrate had prepared an extensive report and recommendation, and the district court was ready to rule on the petition. The claim Williams wants to add could not succeed, anyway. Williams contends the Missouri Supreme Court violated due process because about two hundred Missouri capital murder cases were not in the files the court used to review the proportionality of Williams's sentence. Not only is this claim abusive, but Williams cannot show a due process violation because the Missouri Supreme Court conducted a reasoned review of his sentence. We cannot look behind the Missouri Supreme Court's conclusion or consider whether that court misinterpreted the Missouri statute requiring proportionality reviews. LaRette v. Delo, 44 F.3d 681, 688 (8th Cir.1995). Also, Williams's claim is based on pure speculation. He does not explain why the missing cases are pertinent or how they would have affected the proportionality review.

Having carefully examined the record, including Williams's brief on the merits of this appeal filed after our earlier order, we conclude Williams's claims are neither debatable nor reveal substantial grounds for relief. Accordingly, we affirm the district court's refusal to grant Williams a certificate of probable cause, we vacate our earlier grant of a certificate of probable cause and dismiss Williams's appeal, and we deny Williams's motion for a stay of execution.

It is so ordered.



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