RALPH E. DAVIS, )
Petitioner, )
)
)
vs. ) Case No. 97-4066WMKC
)
PAUL DELO, )
Respondent. )
)
MOTION TO RECALL THE MANDATE
AND APPLICATION FOR STAY OF EXECUTION
COMES NOW Appellant, Ralph E. Davis, by court-appointed
counsel, and respectfully moves this Court pursuant to local Rule 27B(b)(2)
to recall its mandate and reconsider its order denying appellant a certificate
of appealability. In support of this motion, Mr. Davis states as
follows:
1. This Court on August 28, 1998, issued its mandate after
denying Mr. Davis leave to appeal the denial of his petition for writ of
habeas corpus challenging his conviction and sentence of death. 2.
Mr. Davis is scheduled to be executed solely because adequate preparation
for trial cut too deeply into his trial lawyer's drinking time. This
injustice is compounded by the fact that no court has addressed the resulting
violation of Mr. Davis' Sixth Amendment right to competent counsel because
of a procedural bar created by his cocaine-addicted postconviction lawyer
-- who abandoned the practice of law shortly before the expiration of a
critical filing deadline. Although "[t]he availability of post-conviction
relief serves significantly to secure the integrity of proceedings at or
before trial and on appeal," Kaufmann v. United States, 394 U.S.
217 (1969), scrutiny of the record in Mr. Davis' case reveals that such
assurances of integrity do not exist in this case.
3. The malpractice of Mr. Davis' lawyer exposed him to a capital
charge that he would not otherwise have faced. The facts are straightforward.
Mr. Davis was initially charged with second degree murder, a non-capital
offense under Missouri law for which the maximum punishment is life with
eligibility for parole after fifteen years. At the third trial setting
of the case, petitioner's court-appointed attorney knew that the prosecutor
intended to upgrade the charge to first degree murder and seek the death
penalty if the case were not disposed of as scheduled. Upon learning that
the prosecutor intended to upgrade the charge if the continuance was granted,
trial counsel's assistant, Craig Johnston, tracked down trial counsel,
found him drinking in a local tavern, and implored him to withdraw the
continuance request, but trial counsel insisted upon the continuance in
spite of the prosecutor's intentions, and in spite of previous objections
to the continuance voiced by Mr. Davis. Rather than attend
the hearing on his continuance motion in person, he sent an assistant to
cover the hearing on the continuance motion. Neither Johnston nor
trial counsel told Mr. Davis of the prosecutor's plan to upgrade the charge
to a capital crime if the continuance motion succeeded. Johnston,
provided an affidavit verifying the above facts. In addition, an
assistant prosecutor overheard Mr. Davis object to the continuance and
explain to Johnston that the "investigation" for which the continuance
was sought would not lead to helpful evidence. Without fully advising his
client of the circumstance, he squandered an opportunity to resolve the
case--by plea or trial--on relatively favorable terms.
4. Both the performance and prejudice prongs of Strickland
v. Washington, 466 U.S. 668 (1984), are amply satisfied by the facts set
forth in the affidavit of Mr. Craig Johnston. Had counsel performed
competently or fully advised his client in the matter, there is no question
that Mr. Davis would now be preparing for a parole hearing rather than
an execution date. See, e.g., Boria v. Keane, 99 F.3d 492, 498 (2nd Cir.
1996), cert. denied, 117 S. Ct. 2508 (1997), where the court granted relief
because counsel did not tell the petitioner about a plea bargain
offer which would have cut his sentence in half. Trial counsel's conduct
here is the same; his request for continuance, over his client's objection,
deprived Mr. Davis of an opportunity to resolve the case on relatively
favorable terms. Counsel's dereliction of duty is indistinguishable
from that of an attorney who fails to communicate a plea offer prior to
the expiration of a deadline for acceptance imposed by the prosecutor.
Randle v. State, 847 S.W. 2d 576 (Tex. Crim. App., 1993). Accord,
Flores v. State, 784 S.W.2d 579 (Tex. Ct. App. 1990). See also,
Lewandowski v. Makel, 949 F.2d 884 (6th Cir. 1991) (affirming 754 F.Supp.
1142 (W.D. Mich. 1990), finding that trial counsel was ineffective when
he incorrectly advised his client that if he withdrew his guilty plea to
a lesser charge, he could not be retried for the greater charge.
5. Although the law invests certain strategy decisions in
trial counsel, the client unquestionably has the right to make decisions
that affect the charge to which he is exposed. See, e.g., State v.
Anaya, 592 A.2d 1142 (N.H. 1991), where trial counsel was ruled ineffective
for arguing to the jury that his client was guilty of second degree murder,
where his client testified–and instructed his jury to argue– that he was
completely innocent of the crime. The result in these cases is compelled
by the fact that, irrespective of counsel's control of certain strategy
decisions, "Freedom of choice is not a stranger to the constitutional design
of procedural protections in a criminal proceeding." Faretta v. California,
422 U.S. 806, 834, n. 45 (1975). Missouri Disciplinary Rules dictate
that "a lawyer shall abide by his client's decisions concerning the objectives
of the representation," and requires the lawyer, after consultation with
the client, to abide by the client's wishes "as to a plea to be entered,
whether to waive jury trial and whether the client will testify."
Rule 4-1.2. Lawyers are also obliged to keep a client reasonably
informed about the status of a matter. Rule 4-1.3. Counsel's
conduct in this case deprived Mr. Davis of any opportunity to make a critical
decision that would spare him from exposure to a sentence of death or life
without parole – a decision reserved by law to the client.
6. This Court avoided addressing this question because
of equally shameful conduct by yet another member of the Bar. The
attorney who represented Mr. Davis on his Missouri Rule 29.15 motion had
an undisclosed drug addiction, which he referred to in an affidavit filed
with the district court as a "severe personal problem." Without giving
advance notice to Mr. Davis of his intent to do so, he abandoned
the practice of law--and Mr. Davis--days before the expiration of the jurisdictional
deadline for filing an amended motion raising all known claims. 29.15
counsel's father, also a lawyer, attempted to throw together an amended
motion at the last minute, but it was fatally defective and was eventually
stricken as a nullity because it was not personally signed by Mr. Davis
and notarized. No one disputes that Mr. Davis was not in any way
responsible for this turn of events.
7. Mr. Davis argued to this Court that this procedural barrier
should not be applied in his case for several reasons. First, Missouri
courts have not regularly and consistently applied the procedural bar in
question; therefore, it is not an independent, adequate state ground for
denying Mr. Davis' constitutional claims. When Mr. Davis filed his
amended motion, no prisoner in Missouri had been precluded from proceeding
on an unverified amended motion. When the Missouri Supreme Court
affirmed Mr. Davis' conviction on appeal, it had created a remedy for litigants
whose lawyers had abandoned them by filing postconviction motions that
were fatally defective, but it did not extend that remedy to Mr. Davis.
After the Missouri Supreme Court affirmed Mr. Davis' conviction, it has
abandoned the verification requirement altogether. (See Amended Rule 29.15,
effective Jan. 1, 1996). What possible interest of federalism could
be advanced by enforcing a procedural bar which Missouri courts have applied
only sporadically, and have since abandoned?
8. Second, petitioner contends that ineffective assistance
of appellate counsel constitutes cause for the failure to file a comprehensive
and properly verified amended motion under Rule 29.15. Although this
Court in Oxford v. Delo, 59 F.3d 741, 748 (8th Cir. 1995), enforced Missouri's
verification bar, the Court is not bound to reach the same conclusion in
this case. Counsel representing Oxford prepared an amended motion,
traveled to the prison and presented it to Oxford, but Oxford refused to
sign it. Two facts distinguish this case: First, Mr. Davis was never
given an opportunity to sign his amended motion. Second, because
Mr. Davis was not at fault in the failure to file a properly verified amended
motion, appellate counsel had a clear opportunity to finesse the procedural
bar caused by the drug-addicted lawyer. Mr. Davis' case had not yet
been decided when the Missouri Supreme Court decided Sanders v. State,
807 S.W.2d 493 (Mo. banc 1991), which provided a remedy to litigants where
the failure to file a timely, properly verified amended motion was entirely
the fault of counsel. Counsel could have filed a motion asking that
Mr. Davis receive the benefit of that remedy--appoint new counsel and start
the deadlines anew.
9. Third, there is a colorable argument that the constitutional
right to counsel under Evitts v. Lucey, 469 U.S. 387, 393 (1985), should
apply to claims of ineffective assistance of counsel where a state requires
that such claims be litigated on direct appeal. Indeed, this Court has
ruled that the Arkansas combined appeal procedure--indistinguishable from
Missouri's in any material way--creates a constitutional right to counsel
in the litigation of ineffective assistance of counsel claims. Dawan
v. Lockhart, 31 F.3d 718 (8th Cir. 1994). Although a recent decision
of this Court found a distinction between the Arkansas and Missouri procedures
for raising ineffective assistance of counsel claims, Burns v. Gammon,
No. 97-3406 (8th Cir. filed April 13, 1999), the Arkansas Attorney General
agrees with Mr. Davis that the distinction is meaningless. In an
Amicus Curiae brief in Burns, the Arkansas Attorney General argued that
there is an inherent conflict between this Circuit's holdings in Oxford
and Dawan because the state remedies at issue are identical; "Rule
36.4 was clearly a postconviction remedy, to be sought after entry of judgment,
and it was not a requirement for preserving any direct attacks on the judgment."
Amicus Brief, p. 9. See generally, Amicus Brief, pp. 6-11. (Excerpts
attached hereto as Exhibit A). The Missouri Attorney General himself
argued in that case that Dawan is "inconsistent with United States Supreme
Court precedent..." Brief of Appellee, p. 10 (excerpts attached hereto
as Exhibit B). The only Arkansas titles its remedy under Arkansas
Rule 36.4 as a "motion for new trial," while Missouri calls its remedy
under Rule 29.15 a "motion to modify, set aside or correct conviction and
sentence." The operation of the rules is identical--after sentencing,
the issue of ineffective assistance of counsel is litigated in tandem with
the direct appeal.
10. Mr. Davis also sought a certificate of appealability to
raise the Fifth and Eighth Amendment violation that occurred when the prosecutor
repeatedly used his exercise of his privilege against self-incrimination
as justification to impose the death sentence. Over and over, the
state suggested through its argument and the testimony of police officers
that Mr. Davis failed to disclose the whereabouts of his wife's body, and
that this fact justified executing him. Since this Court denied Mr.
Davis leave to appeal this issue, the United States Supreme Court has unequivocally
ruled that the Fifth Amendment protects against the use of a defendant's
silence against the defendant in a sentencing hearing:
The concerns which mandate the rule against negative inferences
at a criminal trial apply with equal force at sentencing. Without question,
the stakes are high: Here, the inference drawn by the District Court from
petitioner's silence may have resulted in decades of added imprisonment.
The Government often has a motive to demand a severe sentence, so the central
purpose of the privilege -- to protect a defendant from being the unwilling
instrument of his or her own condemnation -- remains of vital importance.
Our holding today is a product of existing
precedent, not only Griffin [v. California, 380 U.S. 609 (1965)], but also
by Estelle v. Smith, [451 U.S. 454, 462, 68 L. Ed. 2d 359, 101 S. Ct. 1866
(1981)], in which the Court could "discern no basis to distinguish between
the guilt and penalty phases of respondent's capital murder trial so far
as the protection of the Fifth Amendment privilege is concerned." 451 U.S.
at 462-463. Although Estelle was a capital case, its reasoning applies
with full force here, where the Government seeks to use petitioner's silence
to infer commission of disputed criminal acts. See supra, at 11. To say
that an adverse factual inference may be drawn from silence at a sentencing
hearing held to determine the specifics of the crime is to confine Griffin
by ignoring Estelle. We are unwilling to truncate our precedents in this
way.
Mitchell v. United States, No. 97-7514 (Filed April 5, 1999).
As Justice Blackmar of the Missouri Supreme Court noted in his dissenting
opinion in Mr. Davis' case, "Common sense teaches that to require the defendant
to locate the body during the penalty phase is to trample the right of
the defendant to maintain his innocence." State v. Davis, 814 S.W.2d
593, 609 (Mo. 1991) (en banc) (Blackmar, J., dissenting). Clearly,
the use of Mr. Davis' silence in his capital sentencing hearing offended
the Constitution.
11. If reasonable minds could differ on the issues presented
herein, Mr. Davis should be permitted an opportunity to have his appeal
heard:
In requiring a "question of some substance", or a "substantial
showing of the denial of [a] federal right", obviously the petitioner need
not show that he should prevail on the merits. He has already failed
in that endeavor. Rather, he must demonstrate that the issues are
debatable among jurists of reason; that a court could resolve the issues
[in a different manner]; or that the questions are "adequate to deserve
encouragement to proceed further." [Citations omitted.]
Barefoot v. Estelle, 463 U.S. 880, 893 (1983). At least three
judges of this Court viewed the issues in this case as warranting consideration
by the en banc Court–a considerably higher standard than that required
for a certificate of appealability; it requires a showing of a need "to
secure uniformity of the court's decisions" or that the case involves "a
question of exceptional importance." FRAP 35(a). Surely the
lesser standard set forth in 28 U.S.C. sec. 2253 has been satisfied by
the issues presented herein.
12. Petitioner believes that this Court may have applied an
improper standard for granting a certificate of appealability. The
attorney general has consistently argued that where a claim is denied on
procedural default ground without reaching the merits, a petitioner cannot
obtain a certificate of appealability to review that determination because
section 2253 requires petitioner to make a substantial showing of the denial
of a constitutional right. This Court en banc recently rejected this
argument:
[W]e do not think sec. 2253(C) is intended to preclude all
review of preliminary procedural issues, such as the limitations in question
now before us. We read sec. 2253(C) as addressing only the sort of
showing required for a petitioner to obtain appellate review of the merits
of his or her claims for habeas corpus or sec. 2255 relief. Otherwise,
a final order entered by a district court based upon a question antecedent
to the merits, if adverse to the petitioner could never be reviewed on
appeal. While we assume Congress has the power to establish such
a regime, we do not think it intended to do so when it enacted the AEDPA.
Nichols v. Bowersox, No. 97-3639 (8th Cir. filed April 13, 1999).
However, two judges of this Court–a sufficient number to deny a certificate
of appealability if they had been on appellant's panel–dissented from this
holding.
13. Three Judges of this Court found that the issues in this
case warrant rehearing en banc; Eighth Circuit Rule 27B(b)(2) authorizes
one judge to issue a certificate of appealability. The local rule
is clearly drawn to comply with Sec. 2253, which provides that a
habeas petitioner may appeal if he obtains a certificate of appealability
from "a judge or justice." The fact that three judges of this Court
have voted to review this case en banc satisfies the dictates of the statute.
That fact raises several important questions:
a. Is a habeas petitioner entitled to a certificate of appealability
if three judges find that the case warrants review by the en banc court?
b. Is the standard for ruling on a rehearing motion from an
order denying a certificate of appealability the same as the standard for
granting the certificate in the first place?
c. If a district court refuses to review a claim because it
perceives it is bound to do so by precedent of this Court, and this Court
refuses to review that decision under the extraordinary circumstances of
this case, has there been a suspension of the writ of habeas corpus?
14. This Court should stay petitioner's execution and permit
an orderly disposition of his appeal. Appellant's habeas corpus petition
raised points of constitutional error which presented "substantial grounds
upon which relief might be granted." Barefoot v. Estelle, 463 U.S.
at 895, and these claims were supplemented with a persuasive showing that
there is no independent, adequate state ground to justify their denial.
Under well established Eighth Circuit precedent, a stay of execution must
issue in order to permit full and fair review if the issues presented in
the condemned prisoner's habeas corpus action are not frivolous.
Mercer v. Armontrout, 864 F.2d 1429 (8th Cir. 1988); see also, Otey v.
Hopkins, 972 F.2d 210 (8th Cir. 1992). To rule otherwise in this
case would ignore the historical role of appellate review in the development
of the doctrine of abuse of the writ. The Supreme Court long ago
noted that although "[t]he inapplicability of res judicata to habeas .
. . is inherent in the very role and function of the writ," some limitations
on the filing of second or successive habeas corpus petitions habe been
justified because, unlike at common law, the denial of a writ of habeas
corpus is subject to appeal. Sanders v. United States, 373 U.S. 1,
8 (1963). The complete denial of appellate review on a first petition
for writ of habeas corpus, over the objection of three judges of this Court,
threatens the liberties guaranteed under the Constitution:
[The Writ's] history and function in our legal system and
the unavailability of the writ in totalitarian societies are naturally
enough regarded as one of the decisive differentiating factors between
our democracy and totalitarian governments.
Rose v. Lundy, 455 U.S. 509, 546, n. 16 (1982) (Stevens, J.,
dissenting), citing Brown v. Allen, 344 U.S. 443 (1953) (opinion of Frankfurter,
J.)] Id. at n.16.
WHEREFORE, for the foregoing reasons, Petitioner respectfully
moves this Court to recall its mandate, issue a Certificate of Appealability
to permit appellate review of his Constitutional claims, and grant a stay
of execution.
Respectfully submitted
Sean O'Brien Elizabeth Unger Carlyle
305 E. 63rd St. 200 S.E. Douglas, Ste. 200
Kansas City, MO 64113 Lee's Summit, MO 64063
(816) 363-2795 (816) 525-2050
FAX (816) 363-2799 FAX (816) 525-1917
CO-COUNSEL FOR MOVANT COUNSEL FOR MOVANT