Clay v. Bowersox
2011 U.S. App. LEXIS 256
| 8th Cir. | 2011Background
- Clay was convicted of murder in Missouri and sentenced to death; his prior appellate history is noted, including a prior 2004 8th Circuit decision and state court proceedings.
- The Missouri Supreme Court scheduled Clay's execution for January 12, 2011.
- Clay filed a petition for a certificate of appealability from the district court's January 3, 2011 order denying his supplemental habeas petition and also moved for a stay of execution.
- Clay argued due process concerns under Hicks v. Oklahoma regarding proportionality review under Mo.Rev.Stat. § 565.035.3 as recently construed in State v. Dorsey.
- Dorsey held that proportionality review requires considering all factually similar cases in which the death penalty was submitted to a jury, including those resulting in life without parole.
- The Missouri Supreme Court later explained that Dorsey is not retroactive, and this court concluded Clay had not shown a substantial denial of a constitutional right or a likelihood of success on the merits warranting relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proportionality review retroactivity and due process claim | Clay argues MO's Dorsey-based change violated Hicks retroactively | Missouri's change was prospective; Hicks retroactivity not triggered | No substantial showing; not retroactive under Hicks/Stone framework |
| Certificate of appealability standard and stay request | Clay contends COA and stay should issue due to potential constitutional error | No substantial showing; not likely to succeed on merits; stay denied | COA denied; stay denied |
| Retroactivity of state court construction on federal law | Clay asserts retroactive application of Dorsey violated federal law | State court's construction applied prospectively; not unreasonable | Not an unreasonable application; claims rejected |
Key Cases Cited
- Hicks v. Oklahoma, 447 U.S. 343 (1980) (Due process proportionality analysis not retroactively compelled by Hicks)
- Wainwright v. Stone, 414 U.S. 21 (1973) (Retroactivity choice lies with state courts; not compelled to retroact)
- Miller-El v. Cockrell, 537 U.S. 322 (2003) (COA standard: substantial showing of a denial of a constitutional right)
- Hill v. McDonough, 547 U.S. 573 (2006) (Stay standard for execution; substantial likelihood of success)
- State v. Dorsey, 318 S.W.3d 648 (Mo. 2010) (Proportionality review requires considering all factually similar cases)