Denise Cleone Rhode v. Barbara Olk-Long, Warden, Iowa Correctional Institution for Women, Mitchellville, State of Iowa

denied, Cir.), 113 S.Ct. cert. (1992).

168, 121L.Ed.2d 116

Finally, Zeitvogel contends Missouri adequately review his

Supreme Court did proportionality its to sen

sentence to ensure in similar imposed on defendants

tences

eases, Eighth Four in violation of the and The Missouri

teenth Amendments. Zeitvogel’s

Court reviewed sentence appeal, and addressed

his direct proportionality issue its

and decided

opinion. Zeitvogel, 707 S.W.2d 370-71. decisions, our recent this is the end of

Under LaRette, 688; inquiry. 44 F.3d at

our See

Foster, 882; Delo, Murray 39 F.3d at (8th Cir.1994), F.3d 1376-77 cert. de

—nied, -,

L.Ed.2d 819 conclusion, Zeitvogel’s contentions fail. Zeitvogel cannot show for

Because cause default,

procedural Zeitvogel is not entitled evidentiary hearing

to a federal on his main Zeitvogel’s remaining

claims. contentions proeedurally

are barred or meritless. We

thus affirm the district court’s denial of Zeit-

vogel’s petition. habeas RHODE, Appellant,

Denise Cleone OLK-LONG, Warden,

Barbara Iowa Cor Women,

rectional Institution for Mit

chellville, Iowa, Appellee. State of

No. 95-1898. Appeals,

United States Court of

Eighth Circuit.

Submitted Nov. 1995. April

Decided 1996.

Rehearing Suggestion Rehearing for May 3,

En Banc Denied 1996.*

*Judge grant suggestion rehearing would McMillian en banc.

286 charged

Rhode was murder endangerment. and child She waived her right jury to a and the case was tried judge Although before a in Iowa state court. trial, testify testimony Rhode did not her given about Matthew’s death at an earlier juvenile proceeding was read into evidence. juvenile hearing, that, In the she testified on day injured, the Matthew was him she left parents, Marilyn with her and Charles Marsh, between 11:00 p.m. a.m. and 1:00 or time, said, p.m. During 1:30 she Mat- thew appar- fell off the bed but no sustained injuries. ent She further stated that after returned, Matthew, put she fed him in kitchen, room, the walker left the and crying. a short while later heard him She returned, testified that when she she found against walker tilted and Matthew’s head her, children, According the wall. to her two three, ages playing nearby. five and were Kinnamon, IA, Rapids, Jon M. Cedar ar- trial, At several doctors who treated Mat- gued, appellant. for pathologist thew and the performed who his McGrane, Gen., Atty. Thomas Asst. Des autopsy testified for the state. The doctors Moines, IA, Fisher, Jr., argued. Thomas G. agreed injuries all that Matthew’s could not Gen., brief, Atty. Asst. appellee. on have resulted from tipping the walker over or falling injuries off a bed. The could BEAM, HEANEY, Before and MORRIS only have resulted from a direct and inten- ARNOLD, Judges. SHEPPARD Circuit tional blow baby’s with extreme force to the experts head. The medical were unable to ARNOLD, MORRIS SHEPPARD Circuit pinpoint exactly occurred, injury when the Judge. they opined injured but that Matthew was Denise Rhode the order of the between p.m. 10:30a.m. and 3:30 denying court1 petition district her for a writ parents, Marilyn Rhode’s and Charles corpus. of habeas We affirm. Marsh, subpoenaed appear were to as wit- chambers, nesses for the state. I. Marshes asserted their Fifth Amendment January On telephoned Rhode privilege against self-incrimination and did the Blank Clinic and informed a nurse that testify. not At the conclusion of the nephew, Matthew, her four-month-old had hit court testify found that their refusal to was a tipped his head when his against walker “ruse, ploy generate by doubt their “goose egg” wall. She said that he had a on silence where no reasonable doubt otherwise head, eyes that his were rolled back in his exists.” head, legs and that his arms and were stiff. The nurse told Rhode that ease, Matthew needed At the close of the state’s Rhode’s immediate medical attention. attorneys Rhode then asked to withdraw as defense coun- telephoned father, Matthew’s attorneys the two sel. The also told the court that took him hospital. to the they Matthew died the might were concerned that Rhode not following day. be assist her defense. The Wolle, 1. The Honorable Charles R. Chief United Iowa. Judge States District for the Southern District of corpus many years, writ of habeas was attorneys’ request to with- granted the Houser, solely in such eases. available counsel. replacement appointed draw and 512.) disagree, they F.2d at judge that attorneys told the Her new that the trial court lacked Rhode’s contention judge competent, so the Rhode

believed jurisdiction. hearing. to hold decided pre- without attorneys then rested jurisdictional ar premises her court then found any The' senting evidence. exclusively gument on Iowa law. She asserts felony and child en- murder guilty of jurisdiction over her case that the court lost impris- her to life dangerment and sentenced it failed to conduct a hear when years for and ten murder onment for ing during required serving endangerment. Rhode child ap § 812.3. The Iowa court of Code Ann. concurrently. sentences the failure to con peals, held that part that contending in appealed, Rhode contemporaneous competency hearing duct a competency held a court should have the trial jurisdiction deprive court of did not the trial attorneys first that her at the time convict, try, Rhode. v. to and sentence State “ competence. her concerns about indicated Rhode, a 503 at 34. Because ‘[de N.W.2d appeals found because of that The court Iowa court is vested termination of whether a state question grounds existed to reasonable jurisdiction under state law is a function with competent to Rhode was stand whether courts, judicia not the federal of the state ” competency have held a court should the trial (8th Solem, 324, ry,’ 801 F.2d 331 Martin v. ease to remanded the The court hearing. Cir.1986), Egeler, quoting v. 532 F.2d Wills competent at Rhode was whether determine (6th Cir.1976) curiam), 1058, (per the 1059 half Two and was tried. the time she conclusively of of the court decision compe- trial court the held after the jurisdic trial court had establishes that the com- testimony was tency hearing. After the tion over Rhode. that evidence court found the pleted, the in the was by Rhode and presented III. pre- is a defendant “equipoise.” Because challenges post-conviction Rhode the next Iowa, that the court held competent sumed alleges hearing. She competent to stand trial. Rhode was process her due state of denied Iowa appeals then affirmed com- of Iowa court determining competency two and a half as well as petency determination obligated legally years after the court was 27, Rhode, v. State convictions. further competency hearing; she conduct a banc). (en 35, Ct.App.1993) 38-41 alleges that was insufficient evidence there corpus for a writ of habeas petition In her competent. finding that she was support a 2254, § Rhode set to 28 U.S.C. pursuant The district grounds for relief. forth six legally incompe of a The conviction grounds and petition on all court denied v. process. due Pate person tent violates appeal. these claims on Rhode renews 378, 836, Robinson, 375, 86 S.Ct. 383 U.S. post- While 15 L.Ed.2d II. competency are of conviction determinations disfavored, id. at generally argues that conviction first post-conviction have that a com lacked we held trial because the state is invalid long “a proper so hearing is long petency case. It has been jurisdiction over her possible. Har meaningful hearing” remains corpus relief that federal habeas established (8th 1308, 1311 Wyrick, F.2d v. for want kins a conviction is void when available Cir.1977). See, agree with the district court e.g., jurisdiction in the trial court. of appeals that court of 146, 148, Henry, 211 Keizo meaningful and constitu (1908); Rhode received 41, 41-42, parte Ex 53 L.Ed. 125 hearing. (10 Otto) post-conviction Siebold, 25 L.Ed. tional testimony States, hearing, there was At the (1879); and Houser United Cir.1974). (Indeed, experts had examined (8th who several medical F.2d long the trial or adopt Rhode either cline to reading Rhode’s narrow her conviction. These witnesses of- after Medina. opinions their on Rhode’s com-

fered petence to stand trial and we think IV. “contemporary that the nature of doc- these appellant tors’ examinations was sufficient argues that she was denied due adequate hearing possible” an to make process because there was insufficient evi- 1992. Id. at 1311-12. We are also of the presented prove dence at trial to that she presented view that the evidence at the hear- killed Matthew and because there insuf- was, contrary ing petitioner’s to the conten- ficient evidence that she acted with malice tion, support sufficient to a conclusion that aforethought, being this latter an element of competent she was when committed the offenses, murder, all murder even un- instance, great offense. For there was a § der Iowa Code Ann. 707.1. testimony suffering deal of that she was not from the mental illness that she claimed ren- incompetent dered her to stand trial and claims, reviewing these we must

testimony that she was to stand “whether, determine viewing after evi trial. post- We have read the record of her light dence in the most favorable to the trial with care and find it than more prosecution, any rational trier of fact could adequate support finding of the trial have found the essential elements of the court. beyond (emphasis crime a reasonable doubt” argues original). Virginia, Rhode also that the state in Jackson v. 443 U.S. deprived by 307, 319, trial court process 2781, 2789, her of due 61 L.Ed.2d 560 requiring her to bear the of (1979). burden demon If supports conflicting the record strating incompetent. that she was We dis inferences, required we are to assume that agree. Supreme recently The Court held the trial court resolved all conflicts in favor process permits that the due clause a state to prosecution. of the Id. at 99 at S.Ct. require a defendant to bear the burden of Although 2793. parts it is true that some of proving incompetence. his or her own Medi the record support could be read to Rhode’s California, 437, 450-51, na v. 505 U.S. parents theories that either her or her chil (1992). S.Ct. 120 L.Ed.2d 353 In injuries, dren could have inflicted the fatal Iowa, criminal presumed defendants are ample we find evidence in the record that when evidence about Particularly Rhode killed Matthew. when Pedersen, “equipoise.” is in State v. in light read prose most favorable to the (Iowa 1981). N.W.2d Rhode con cution, overwhelmingly the evidence supports apply tends that Medina only should when the conclusion that Rhode killed Matthew. competency hearing and trial are held contemporaneously. argues apply She that amply supports record also a ing presumption competence of in post- finding that Rhode acted with malice afore competency hearing conviction violates due thought. experts The medical testified that process unfairly because it adds to the diffi injuries head as severe as Matthew’s could hearings. culties inherent in argu such This only intentionally result from striking the Medina, ment is without merit. 505 U.S. baby’s great against head with force a hard 445-46, 112 2577-78, at S.Ct. flat injuries surface. To sustain such severe Court indicated that federal courts should accidentally, opined one doctor that Matthew not disturb state allocating laws the burden twenty would have had to fall over feet. proof of hearings. The Medi Furthermore, Iowa, may malice be in upon na long-stand decision was based .the ferred prior dealings from the defendant’s ing principle legislatures, that state not fed Johnson, courts, with the victim. State v. eral should establish state rules of 1982), denied, procedure. criminal cert. Id. Because we believe principle that applies equal this force to 74 L.Ed.2d 95 post-conviction competency hearings, we de- At Rhode’s husband testified maliciously injury inflicted the that led to spank Mat- seen her shake that he had Matthew’s death. that he thew, testified doctors several baby syndrome,” signs “shaken showed that she had mother testified and Matthew’s VI. he on her son after found bruises

previously that Rhode next contends her convictions together, the Taken spent with Rhode. time process jeopardy. violate due and double prior mistreatment of Rhode’s evidence process precluded claims that due She injuries severity pro- of his Matthew and the using endangerment from child as a court enough for the than evidence vided more (In murder basis conviction. acted with malice to find that Rhode court Iowa, if or person commits murder he aforethought. person participating in a “kills another while 707.2.2.) felony.” §

forcible Iowa Code Ann. Alternatively, argues princi- that the Y. convicting ple jeopardy precludes of double argues that the trial Rhode next endangerment child and first her for both concluding that process violated due degree disagree. murder. We Fifth of their Amend the Marshes’ assertion privilege against self-incrimination argument ment the Iowa it is reject argument. precluded using partic this While a ruse. court was endangerment to convict her per ipation is not child that a trial court established well degree lacks a constitutional of first murder from a witness’s to draw inferences mitted Nix, 130, 134 924 F.2d basis. See Heaton his or her Fifth Amendment assertion of (8th Cir.1991), denied, 956, 111 cert. 500 U.S. States, privilege, v. United Johnson (1991). 2266, 114 is L.Ed.2d 718 Rhode 549, 553, 189, 196, 87 L.Ed. 704 63 S.Ct. doctrine, essentially merger arguing for the (1943), process violation can serve as a due integral using felonies that are an which bars only corpus relief for federal habeas the basis felony mur part support homicide to of a alleged infected Rhode’s trial if the error so “ Supreme of Iowa conviction. The Court der ‘fundamentally proceeding as to render the rejected merger doctrine for forcible has the Goeke, 675, 44 F.3d Anderson v. unfair.’” endangerment. child State felonies such as (8th Cir.1995), Wyrick, quoting Moore v. 679 Beeman, 770, 776-77 315 N.W.2d v. Cir.1985) (8th 884, (per cu 760 F.2d 886 1982). not, violations of state Even if it had riam). habe as a basis for federal law cannot serve relief, single fails to cite a and Rhode convinced, in the first are not (nor any) that aware of federal case are we improp court drew place, that the state trial argument. supports process her due Marshes’ assertion of er inferences from the against In privilege self-incrimination. the jeopardy argu double deed, court and the Iowa as both the district The also meritless. ments are observed, it seems more court of may legislature has held that Court was probable that the trial court’s statement punishment for the cumulative authorize any at actually to draw inferences a refusal Hunter, 459 U.S. Missouri v. same offense. testify. not to all from the Marshes’ decision 678-79, 673, 366-68, 74 359, 103 S.Ct. issue, not resolve the be We need (1983). felony context of the L.Ed.2d 535 if trial court find that even the cause we murder, be con defendant can “a criminal erroneously the Marshes’ asser considered underly both the punished for victed of and rights reaching tion of their constitutional felony violat felony murder without ing and conclusions, proba we see no reasonable its fifth jeopardy clause of the ing the double the ultimate bility that the error affected both of prosecuted for if he is amendment Anderson, legislature 44 at F.3d if the state outcome of the trial. trial and fenses one indicated, punishment.” already great cumulative have has authorized 679. As we Heaton, court of The Iowa 924 F.2d at 134. that Rhode weight the evidence indicated (1994), § legislature that the Iowa has der Iowa Code 812.3 the court was appeals held punishment felony required suspend proceedings cumulative to authorized immedi- Rhode, v. 503 N.W.2d at 40- ately competency hearing. murder. State and to hold a (“[t]he legislature’s Instead, Iowa intent is clear: ignored this mandate. felony felony underlying can murder and the given hearing years was two and one-half 41); punished,” id. at see also State both be my judgment, after her conviction. In it was (Iowa 1988). 791, Ragland, 420 v. possible meaning- for Rhode to. receive a are the state court’s Because we bound Thus, hearing ful at that time. I dissent. statutes, interpretation of the Missouri post-conviction competency hearing A is a Hunter, 368, 679, at at v. U.S. 103 S.Ct. proper remedy wrongful for a denial of a endanger- Rhode’s convictions for both child pretrial hearing only “meaningful if a hear- and murder did not dou- ment violate ing” possible. Wyrick, Harkins v. jeopardy. ble (8th Cir.1977); F.2d Griffin Lockhart, (8th Cir.1991) 935 F.2d VII. (granting corpus habeas because it “seemed impossible meaningful to now conduct a nunc that, Finally argues be pro hearing” years tunc over three after act, single cause her conviction stems from trial). defendant’s sentencing prison her to life in violates the Eighth prohibition against Amendment’s cru case, In this was not held until punishment. el and unusual We have held two and one-half after Rhode’s convic- legislatures are entitled to “wide latitude tion. The court had to determine both prescribing punishments.” their Sim whether Rhode was at the time of Iowa, mons State 28 F.3d competency hearing the time of — (8th denied, Cir.1994), -, cert. expert testimony her trial. The available to 115 S.Ct. 130 L.Ed.2d 1119 inadequate the state meaningfully ad- Only “grossly dispropor sentences that are dress either of these issues. Three of the conceivably tionate” the crime could vio only four witnesses for the state had Eighth late the Amendment. Harmelin v. Rhode, limited contact with all of which oc- Michigan, during post-conviction curred incarcera- (1991) 2705, (plurality opin 115 L.Ed.2d 836 testimony clearly tion. A review of their ion). We are not inclined to hold that a life expert demonstrates that none of these wit- grossly disproportionate sentence is to the nesses had prior examined her to her convic- murdering crime of an innocent four-month- they tion and never examined her to deter- baby old aforethought. with malice mine her to stand trial. Rowe, Carol a correctional counselor at the

VIII. Iowa Correctional Institution for in Women Mtchellville, Iowa, testified that she had reasons, foregoing For the we affirm the Rhode, along seen with over a hundred other district denying peti- court’s order Rhode’s inmates, routine, for a administrative “review tion for a writ corpus. of habeas that, stay”; beyond of her most of her knowl- edge of Rhode’s mental came state HEANEY, Judge, Circuit dissenting: reports prepared by prison incident other employees. Hrg. determined, Tr. at 333.2 Rowe did not Appeals As the Iowa Court of express opinion competen- when Denise an Rhode was tried in the about Rhode’s court, trial; grounds cy merely reasonable existed to at the time of stated that examine her to stand trial. Un- she believed Rhode understood what was 20, 2. testimony hearing All citations to refer to the held October 1992. transcript post-conviction competency of the alone, Hrg. testimony, printed on Tr. at based records while incarcerated. “going on” Supreme that the Court intended to discour- 338. Robinson, 375, age in v. Pate 386- Welsh, psychologist with a staff Leonard 836, 842-43, 15 L.Ed.2d 815 Corrections, per- Department of the Iowa psychological a evaluation of formed incarcera- post-conviction of her at the outset Court of Iowa has consis- evalua- part prison of her entrance tion as tently of a considered reversal defendant’s not examine her to determine tion. He did appropriate remedy to be the conviction not competency, and he was even her trial violation of section 812.3. See State v. history Hrg. of mental illness. aware of her (Iowa 1979) Kempf, 282 N.W.2d asked about Tr. at 304-05. When conviction); (reversing Hickey defendant’s competency to stand Welsh Rhode’s County, District Court Kossuth of ability to doubt about his expressed serious also, 1970); N.W.2d see State you are not there at opinion: form an “Since (Iowa 1990) Myers, 460 N.W.2d inferences; time, you all can do make (“If the court of was correct con- go is to anything to do other than that cluding that matters known the trial court you say.” Hrg. Tr. at 302. beyond what can 812.3, hearing under section then mandated explicitly express opinion He did not hearing we believe the failure to hold such a competency at the time of the 1992 Rhode’s probably capable being by not cured rather, primarily written hearing; based on competen- post an ex facto determination of records, opinion, that in his he stated cy.”). The the Iowa in- instant decision any significant form of mental did not suffer appellate termediate is inconsistent Hrg. Tr. illness. at 302. precedents clear of the Iowa with these Su- Brainard, psychologist at Peter not, my preme opinion, Court and does prison, had twelve to fifteen Mitchellville Rhode, comport with Iowa Law. State v. See psychotherapy sessions with Rhode (Iowa App.1993). performed a mental her incarceration and opinions Because the of the state witnesses of her two after her status evaluation limited, purely Hrg. primarily Tr. at 323-24. When asked were based on ad- conviction. currently suffering from ministrative, whether Rhode was post-conviction contact with illness, that six a mental Brainard answered Rhode, to con- the trial court was able not, prior months to the she was but hearing in meaningful competency this duct judgment” “no basis for a as to that he had I case. believe that we must vacate Hrg. Tr. at present mental condition. remedy court’s error at conviction to explicitly Brainard never testified that 325. state, course, may retry her if trial. The competent at the time of her Rhode was appropri- appropriate time and only had ever but that he did not believe she compe- she is proceeding ate it is determined illness the two suffered from mental tent to stand trial. prison. at the he had contact with her testimony highlights, only Brainard’s opinion com-

inadequacy of his as Rhode’s

petency also the at the time of but difficulty making post-trial these

extreme generally.

determinations

Finally, Taylor, only Dr. Michael compe- that Rhode was

witness who testified

tent both at the time of the opinions sole-

when she stood based

ly personal and a consul- on written records just prior to the

tation with her type

hearing. precisely It is this

Case Details

Case Name: Denise Cleone Rhode v. Barbara Olk-Long, Warden, Iowa Correctional Institution for Women, Mitchellville, State of Iowa

Court Name: Court of Appeals for the Eighth Circuit

Date Published: May 3, 1996

Citation: 84 F.3d 284

Docket Number: 95-1898

Court Abbreviation: 8th Cir.