| Return to Michael Owsley's Homepage |
IN THE UNITED STATES SUPREME COURT
MICHAEL OWSLEY, )
Appellant, )
)
vs. ) No. ____________
)
MICHAEL BOWERSOX, )
Appellee )
APPLIC~ON TO THE HONORABLE CLARENCE THOMAS, CIRCUIT JUSTICE FOR THE EIGHTH CIRCUIT, FOR EXPANDED CERTIFICATE OF APPEALABILITY
COMES NOW Appellant, Michael Owsley, by and through his attorneys, and pursuant to Title 28 U.S.C. § 2253(c)(l) and Sup.Ct.R. 22, petitions the Honorable Clarence Thomas, Circuit Justice for the Eighth Circuit, to expand Certificate ofAppealability granted by the District Court to allow Mr. Owsley to raise the following issues in the appeal of this matter:
1. Whether Mr. Owsley's trial counsel, James McMullin, rendered ineffective assistance of counsel in violation of his rights to be free from cruel and unusual punishment, secured by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution in the following respects:
a. Mr. McMullin failed to conduct an adequate pre-trial investigation;
b. Mr. McMullin fiJed a notice ofmitigating circumstances which applied not to Mr. Owsley, but to another client of Mr. McMullin's, namely, Michael Taylor;
c. Mr. McMullin failed
to make an adequate offer of proof regarding evidence of intoxication proffered
to show lack of deliberation;
Mr. MoMullin made an incoherent opening statement;
e. Mr. MeMullin failed
to adequately cross-examine the prosecution
witnesses;
f.
g.
mitigation evidence;
h.
arguments and
Mr. McMullin failed to
properly respond to prosecution arguments; Mr. McMullin failed to adequately
investigate and coherenfly present
Mr. McMullin failed to properly object to improper prosecution
1. Mr; McMullin otherwise performed in a manner far below the standard expected of a reasonably competent criminal defense attorney exercising areasonable degree of skill, care and diligence.
2. whether Mr. Qwsley's constitutional rights under the Fifth, SixW Eighth and Fourteenth Amendments were violated by the District Court's reflisal to grant him an evidentiary hearing after ruling that he was not procedurally barred from raising claims of ineffective assistance of counsel, where, as here, Appellant has never been granted an evidentiary hearing in any court on these claiins.
3. whether Mr. Owsley's Sixth Amendment right to confront witnesses against him was violated in the presentation of the autopsy report of the victim.
4. whether Mr. Owsley's right to a speedy trial had been violated thereby depriving him of is right to be free from cruel and inhuman punishment guaranteed by the Sixth, Eighth and Fourteenth Amendments of the United States Constitution.
2
5. Whether, because the mandate of Mo.Rev.Stat. §565.035 has become a meaningless ritual, Mr. Owsley's Fourteenth Amendment rights to due process and Eighth Amendment right to be free from cruel and unusual punishment have been violated.
In support of this Application, Mr. Owsley offers the following incorporated Suggestions in Support.
SUGGE~ONS IN SUPPORT
L Introduction
Michael Owsley, charged with first degree murder and facing the death penalty, was represented by an obviously impaired' attorney, James McMullin. Before and during the trial, McMullin repeatedly coriflised Mr. Owsley's case with that of another client, Michael Taylor. At trial, McMullin apparently pursued an intoxication defense, not cognizable under Missouri law, rather than a defense of mental disease or defect excluding responsibility, which would have been supported by credible evidence. Mr. Owsley, despite hisown mental problems, recognized McMullin's deficiencies and tried repeatedly to obtain other counsel. As his relationship with McMullin continued to deteriorate, Mr. Owsley again sought to replace him, to no avail.
Affidavits ofmental health experts submitted during state post-conviction proceedings confirm that Mr. Owsley's concern about his trial lawyer's competence was well-founded. Dr. Briggs was never informed that the defense of voluntary intoxication was repealed; his
whether the impairment resulted from senility, dementia secondary to
medication taken after hip replacement surgery, or some other cause is of no import.
3
fmdings would have supported a mental disease or defect defense which trial counsel did not pursue. L.F. 183 - 185. All of the experts described Mr, McMullin as not "tracking with questions and answers during the trial,,, L.F. 184, "dontinually conflised" about which case he was working on, L.F. 193, experiencing "lapse[s] of memory," L.F. 192, "disorganized and unable to stay on track," L.F. 188, hostile toward his capital clients Id and ill-prepared for trial. L.F. 183 - 84, 192, 188. Given adequate support from trial counsel, the trial experts would have concluded that independent of drug intoxication, Mr. Owsley has a serious mental disease that would be a defense to first degree murder under Missouri law. L.F. 185, 192, 189, Mo.Rev.Stat. § 552.015.
The District Court granted Mr. Owsley a certificate of appealability which included Mr. Owsley' 5 claim of an irreconcilable conflict of interest with McMuUin, but precluded review of Mr. Owsley's compelling claim of ineffective assistance of counsel, Mr. Owsley's claim regarding denial of an evidentiary hearing by the District Court despite the fact tat he was not afforded an opponunLity to develop the factual record in state court' and other significant constitutional claims.
Mr. Owsley then sought
an expanded certificate of appealability in the United States Court of
Appeals for the Eighth Circuit. That motion was denied February 2, 2000.
Mr. Owsley sought rehearing of his motion to expand the certificate of
appealability, either by the panel or by the court en banc. That Petition
was denied April 13, 2000.
II. The Standard
For Granting a Certificate of Appealability
4
ifi. The Certificate of
Appealability Should Be Expanded So
That The Court Can Decide
the Additional Important
Questions Set Forth Above
A. Item (1) sets forth nine detailed instances and examples of ineffective assistance of counsel ofwhich James McMullin, state court trial counsel, was guilty. The District Court's characterization that these clairns "merely regurgitated legal standards" is notjustified. The unconstitutional quality of counsel's performance at Mr. Owsley's state court trial, including the claimed conflict ofinterest between Mr. Owsley and Mr. MeMAfli, as to which a certificate of appealability has been issued, are inextricably entcrtwined, and require that the Certificate of Appealability be enlarged.
B. The Certificate of Appealability should be expanded to permit the Court of Appeals to review whether Mr. Owsley's constitutional fights under the Fifth, Sixth, Eighth and Fourteenth Amendments and 28 U.S.C. § 2254(d) were violated by the district court's reflisal to grant hirri an evidentiary hearing after ruling he was not procedurally barred where, as here, Mr. Owsley has never been granted a hearing in any court on these claims.
Mr. Owsley was denied
a 29.15 hearing by the state trial court and the Missouri Supreme Court
for the reason that his amended 29.15 motion was not "substantially
5
in the form of Criminal Procedure Form 40" and on the basis of only one case from the Missouri Court of Appeals, State V Katura 837 S.W.2d 547 (#o.Ct.App.,S.D., 1992). Mifiough the District Court found no procedural bar, it erred grievously in denying an evidentiary hearing. The clear ruling of the Eighth Circuit Court of Appeals in Parkus V. ikiQ, 33 F.3d 933, 939 (1994) instructs that if a claim is not procedurally barred, then the federal district court must grant an evidentiary hearing when there is a showing sufficient to warrant it. If the state courts didn't grant a hearing, which is clearly the situation presented in this case, then the Federal District Court must. The absence ofprocedural default and the fact that Mr. Owsley was prevented from making an evidentiary record in state court, clearly present in this case a clear fulfillment ofthe conditions set forth in Keeneymv. Tamavo-Reyes 504 U.S. 1, 112 S.Ct 1715, 118 L.Ed.3 18(1992) so that the directions set forth in Townsend V. Sairt 372 U.S.292,312-313, 83 S.Ct. 74s, 757 (1963) apply.
"Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state court trier of facts has after a full hearing reliably found the relevant facts.Qmphasis added.)
C. The certificate of appealability should be expanded to permit the Court of
Appeals to review the question of whether Mr. Owsley's sixth amendment right to confront witnesses against him was violated in the presentation of the autopsy rep ort of the victim.
The autopsy of the victim, Elvin Iverson, was performed on April 20, 1993 by Dr. John Overman who was then the Jackson County, Missouri Medical Exanriner. On
6
Dr. Bergman's hearsay testimony violated Mr. Owsley's constitutional right of confrontation because his counsel had no opportunity to confront and cross-exarnine Dr. Overman. Pointerv. Texas 380 U.S.400, 85 S.Ct. 1065 (1965); Douglas v. Alabama 380 U.S. 415, 85 S.Ct. 1074 (1965). A primary interest of the Confrontation Clause secures the right of cross-examination. Davis v Mask~ 115 U.S. 308, 315 (1974). In Mr. Owsley's trial Dr. Bergman was permitted to testify that the victim, Elvin Iverson, died of a shotgun wound to the head (Tr.925) even though he neither performed the autopsy nor was present when it was performed by Dr. Overman and even though at that time Dr. Overman was alive and well and practicing medicine in ilutchison, Kansas (Tr. 927-928). Dr. Overman's presence could easily have been assured through the uniform law to secure attendance of witnesses from within or without the state in criminal proceedings. §491.400 et seq., R.S.Mo., §§22-4201 and 224206 K.S.A. The Due Process Clause prohibits imposing a death sentence premised "at least in part' on the basis of information which [a defendant] had no opportunity to deny or explain". Gardner v. Florid~ 430 U,S. 349,362 (1977).
7
r
Appeals to review the question of whether Mr. Owsley's right to a speedy trial has been violated thereby depriving hirn of his right to be free from cruel and inhuman punishment guaranteed by the Sixth, Eighth and Fourteenth Amendments of the United States Constinition.
Mr. Owsley's trial did not commence until October 18, 1994 some eighteen
(18) months after he was arrested on April 22, 1993. In that eighteen month period Mr.
Owsley attempted to invoke his speedy trial rights on seven different occasions, namely
November 17, 1993, November29, 1993, January 5, 1994, May31, 1994, June 2, 1994, July
27, 1994 and September 2, 1994.
whether a defendant's Sixth Amendment nghts to a speedy trial was violated is governed by Barker V. Wingo, 407 U.S. 514 (1972). See Dillard v. State 931 S.W.2d at 162 Q{o.Ct.App.W.D. 1996) The Barker decision considers four factors. Those factors are considered as part of a balancing inquiry. Barker v. Wingo. 407 U.S. at 533;. Dillard v. State 931 S.W.2d at 162. None of the four factors are regarded as either a necessary or sufficient condition to the determination whether a defendant's speedy trial rights were violated. Barker v. Wingo, 407 U.S. at 533. The four factors are related and must be examined with other circumstances that may be relevant. Id. The first factor requires inquiry into the length of the delay between when a defendant became an accused and the time of the trial. Dillard V. State, 931 S.W.2d at 162. Until there is a delay that is presumptively prejudicial, it is unnecessary to examine the other three factors. Id. A delay of over eight
8
months is presumptively prejudicial. Id. when the delay is presumptively prejudicial, a court must then exarnine the remajiling three factors: (a) the reason for the delay; (1))the defendant's assertion of his right to a speedy trial; and (c) the prejudice the delay caused the defendant. Id.
Incarcerating Mr. Owsley for almost eighteen months constituted an oppressive pretrial incarceration. That length of imprisonment precipitated the need for Mr. McMullin to request a mental exarnination on February 3, 1994 and for the court to hear argument in support of the motion on February 4, 1994 (L.F. 120-23; 2/4 Tr.) Specifically, Mr. McMullin inforrned the court a mental exarnination was necessary because Mr. Owsley had expressed the desire to plead guilty and be sentenced to death (2/4 Tr.3; L.F. 121-22). Also, Mr. McMulIin apprised the court that he and Mr. Owsley's caseworker believed Mr. Owsley was very despondent (2/4 Tr. 3-4; L.F. 122). It is apparent that the unwarranted delay exacerbated Mr. Owsley's anxiety and concern.
The delay also impaired
Mr. Owsley's defense. From the outset, Mr. Owsley and Mr. McMtillin were
engaged in conflict about Mr. McMullin's representation. That conflict
was only accentuated when, over Mr. Owsley's objection, Mr. McMulIin requested
a continuance ~.F. 100, 102-06). If Mr. Owsley's speedy trial request and
rights had been respected, the on-going dispute between him and Mr. McMullin
rnight not have culnllnated in an irreconcilable conflict that precluded
effective representation of Mr. Owsley. Mr. Owsley's speedy trial rights
under the Sixth Amendment were violated.
9
E. Expansion of the certificate of appealability is required to permit the Court of Appeals to review the question of whether, because~the mandate of Mo.Rev.Stat. §565.035, has become a meaningless ritual, Mr. Owsley's Fourteenth Amendment rights to due process and Eighth Amendment right to be free from cruel and unusual punishment have been violated.
The United States Supreme
Court has held that: "when a State opts to act in a field where its action
has significant discretionary elements, it must nonetheless act in accord
with the dictations of the Constitution... and, in particular, in accordance
with the Due Process Clause." Evius v. Lucey. 469 U.S. 387, 401, 105 S.Ct.
830,838-39(1985). The court flirther ruled that a state cannot create a
procedural right in a criminal proceeding and then make that right into
a "meaningless ritual." Id. at 394-95, 105 S.Ct. 834-35 (citing Douglas
v. Califomi~ 372 U.S. 353, 82 S.Ct. 814 (1963); Griffm V. Illinois, 351
U.S. 12, 76S.Ct. 585(1986). Accord Parkery. Duggen 498 U.S. 308,321, 111
S.Ct. 731,739, ([The Supreme Court] has emphasized repeatedly. . . the
crucial role of meaningful appellate review in assuring that the death
penalty is not hnposed arbitrarily or irrationally.") See also Rustv. Hopkins
984 F.2d 1486 - 1493 (8~ Cir., 1993), cert. denied 113 S.Ct. 2950(1993).
(The deprivation ofmeaningful appellate review is an independent violation
of ~etitioner'sJ constitutional rights.") Mflr~~-t,v~s 897 F.2d 4l7421(9~
Cir.1990), cert. denied 498 U.S.879 (1990) ("We agree that once a state
has established a rule it must apply it with an even hand". (citations
ornitted)).
10
On March24, 1998 the Missouri Supreme Court decided State v.Chaney 967 S.W.2d 47Qto.banc 1998) in which, for the first time in 16 years, that court overruled a death sentence on proportionality grounds. At the time of the court's review of Mr. Owsley's death conviction, no death conviction had been overturned on such grounds since the 1982 decision in State V Mcflvov. 629 S.W.2d 333. During the intervening years proportionality review had been a meaningless ritual. From 1982 through 1998, the Missouri Supreme Court had upheld the conviction on proportionality grounds in everv case. it reviewed. The Missouri Supreme Court has not established any clear standard for proportionality review. A comparison of cases in which the death penalty has imposed to those in which the defendant has received a life sentence demonstrates that there is no consistency in Missouri as to when the death penalty is imposed and when it is not. Indeed, as one Judge of the Missouri Supreme Court described it; [The Missouri Supreme] Court has never enunciated any meaningffl standard of comparison by which it could conduct proportionality review. State V. Reuscher 827 S.W.2d 710, 720 (Blachnar, J. dissenting). See also id. at 719; State v.~Davis 814 S.W.2d 593,607 (Blaclariar 3. dissenting)(\1o.banc 1991).
The Missouri Supreme Court's proportionality review has been found deficient by Donald H. Wallace and Jonathan R. Sorensen m Missouri Proportionality Review: An Assessment of a State Supreme Court's Procedure in Capital Cases 8 Notre Dame J.L. Ethics and Pub.Pol. 281(1994). In particular, the Missouri Supreme Court;'s review fails to employ a frequency approach, Id.at 322. Professors Wallace and Sorensen have found
11
that the Missouri Supreme Court has failed to use available resources to conduct meanrngfiil proportionality review.ld.at 313. It has reflised to compare cases "in which the state chose not to charge a defendant with capital murder, the state agreed to a plea bargain whereby a defendant pled guilty to a lesser charge, the conviction was for an offense less than capital murder or the state waived the death penalty," State V. Bolder 635 S.W.2d 673, 685 Qio. Banc 1982). Cert. denie~ 459 U.S 1137(1983). That refusal arbitrarily abrogates the state created right to proportionality review. See Six v. Delo 885 F.Supp. 1256, 1277 Q.D.Mo. 1995), affid. 94 F.3d 469 (8~ Cir. 1996) (recognizing due process right to proportionality review).
An additional problem with the Missouri Supreme Court's proportionality review is that the database is inadequate and does not comply with §565.035.6, which provides that the Court "shall accumulate the records of all cases in which the sentence of death or life imprisonment without probation or parole was imposed after May 26, 1977..." That directive has not been followed. In May, 1994, the Court did not have 189 life cases as required under §565.035.6. There is nothing to suggest the database has been changed and is now more complete. The noted data, moreover, demonstrates that the provisions of Rule 29.08 which requires trial judges to file reports in all first degree murder cases no later than ten days after fmal imposition of sentence is routinely violated. Without the required data the Missouri Supreme Court cannot conduct proper proportionality reviews.
Mr. Owsley's sentence is disproportionate. The state's evidence contained Mr. Owsley's interrogation statement that his gun accidentally fifed (Tr.942,958-59, 1015;
12
Ex.28). During that interrogation statement Mr. Owsley indicated he was drunk (Tr. 960). At sentencing, Mr. Owsley stated that he never denied he shot Mr. Iverson, and only maintained that he had not acted with premeditation (Sent.Tr.4). Mr. Owsley's more culpable co-defendant, Marion Hamilton, who instigated the entire affair, was not sentenced to death. Additionally, at sentencing, Mr. Owsley apologized to Mr. Iverson's family for their loss (Sent. Tr. 5). Under these circumstances, a death sentence is disproportionate.
Conclusion
For the foregoing reasons, the Circuit Justice should grant an expanded certificate of appealability including the issues set forth above.
Respectfiilly submitted,
WYRSCH HOBBS MIRAKiAN
& LEE,P.C.
MO#25539
Counsel of Record
1300 Mercantile Tower
1101 Walnut
Kansas City, Missouri
64106-2122
Telephone: 816/221-0080
Fac);;>3;; {;t~~1½(~X
OtORGE M. WINGER ~
9233 Ward Parkway, Suite
120,
Kansas City, Missouri
64114
Telephone: 8161361-1137
FacsIIMle: 816/361-0283
ATTORNEYS FOR APPELLANT
13
MO#15724
| Return to Michael Owsley's Homepage |
