Edward K. Shigemura v. Michael T. Groose
45 F.3d 250
8th Cir.
1995
Check Treatment

*1 Due Fourteenth Amendment trial IV. Process court did not in abuse discretion not Claim allowing testimony, further as it would have been cumulative in agree nature. We with alleges that trial Poole the court Supreme the mag- Minnesota Court the prior in certain bad admitting erred acts and judge’s allowing lay testimony, in certain witness istrate statements that Dr. Poole’s prejudicial was so that that error regard conduct with certain to fatally the trial and faded to infected afford patients not to relevant he en- whether pro his him fundamental fairness and due gaged in the unlawful conduct with which he rights guaranteed by cess the Fourteenth charged. peti- was We therefore find that petitioner Specifically, Amendment. con tioner fundamentally was afforded a trial fair that in admitting tends the trial erred process rights and that his due guaranteed 1979 in two incidents from admitted by the Fourteenth Amendment not vio- were 14-year-old to contact with a sexual female lated evidentiary rulings. the court’s relative. The Minnesota Court Supreme Court of Minnesota af V. Conclusion firmed the trial court’s admission of these The district court correct was in probative two incidents as more than report the magis- recommendation of the prejudicial. We addressed the issue of ad trate which found that the statutes mitting prior prove bad acts to intent or lack petitioner under which was convicted were of mistake in a in habeas case Rainer v. that vague, oppor- he had a full and fair Corrections, (8th Dept. Cir. tunity present any to Fourth 1990). prior that Rainer’s incidents level, issues at the state court that of violence different in towards women his disprove rulings evidentiary life were admitted to his assertion vio- shotgun accidentally discharged his process rights. into late his due district back, girlfriend’s fatally wounding his her. for denied writ of habeas These acts were admitted to show intent or prejudice. with We affirm. part. lack of mistake on Rainer’s We believe reasoning applies pres same ent case. Poole’s actions towards his 14-

year-old intent, second cousin his evidence mistake,

plan, or lack of which are sufficient purposes admitting for under acts Minn. SHIGEMURA, Edward K. 404(b). reasoning R.Evid. Under the set Petitioner-Appellant, Rainer, forth will we not address the issue in admitting of whether the trial court erred GROOSE, Respondent- Michael T. acts, bad but do find that under the totality Appellee. of the circumstances was Poole denied his a fair trial and that No. 94-1762. rights constitutional were not violated. Appeals, United States Court Poole also contends that the trial Eighth Circuit. lay court’s failure to allow some of his wit Sept. Submitted testify nesses resulted the violation of process rights. his due Poole claims that he Decided Jan. had several other witnesses who were not Rehearing Suggestion Rehearing testify concerning allowed his bona fide En Bane Denied March 1995.* practices. medical The trial court did allow patients testify several Dr. Poole’s

they pelvic had no complaints about his ex ams, and Poole testified his al

leged bona procedures. fide medical

Supreme Court of Minnesota found Arnold, Sheppard McMillian Morris en banc. Judges, grant suggestion rehearing would

251 MAGILL, Judge, Before Circuit LOKEN, Judge, Circuit Judge.

LOKEN, Judge. Shigemura, Edward Missouri inmate con- offender, persistent a prior victed as serving twenty-year prison a sentence for hindering pros- property appeals the denial ecution. of his corpus. for a writ of habeas He namely, appeal, one raises issue on denying procedur- as district court1 erred ally barred his claim of ineffective assistance counsel. We affirm. trial, Shigemura filed a pro

Prior se counsel, for appointment motion of new com- plaining was not attending defense. He raised pro supplement se again for a new trial. At sentenc- ing, Shigemura again expressed dissatisfac- tion with efforts. trial counsel’s cause to believe court found had assistance of received ineffective appeal to file a notice of withdraw, appointed new counsel appeal, for the Missouri Su- 29.07(b)(4). preme Court Rule prosecute later retained new law, claims ineffec Under Missouri must be raised tive assistance of trial counsel post-conviction motion under Missouri See State v. Supreme Court Rule 29.15. (Mo. Wheat, 155, 157-58 775 banc S.W.2d 1030, 1989), denied, cert. (1990).2 107 762 L.Ed.2d Louis, MO, Hogan, argued for Jane St. C. pursued the appellate counsel appellant. direct Rule 29.15 but Simon, Gen., Atty. argued, motion. Six after his conviction was Asst. months John W. affirmed, Shigemura, 768 appellee. S.W.2d see State GUNN, JR., litigated are GEORGE F. claims HONORABLE denied, Judge for the Dis- United States District trict Eastern and if defendant files relief is Missouri, Report denial, Rec- separate appeal from that HONORABLE CATHERINE ommendation D. ap the direct Court of will consolidate (now PERRY, Magistrate Judge United States generally peal and Rule 29.15 Lowe- Judge) for the Dis- United District Eastern States Groose, (8th Cir.), Bey 819 28 F.3d cert. trict of Missouri. denied, - U.S. -, S.Ct. 130 L.Ed.2d 115 (1994). direct If Rule 29.15 motion abeyance while is held in the Rule (Mo.App.1989),Shigemura proa filed se motion. Because the issues, numerous this situation preliminary would be to the including ineffective his trial direct and at the direction of the counsel. The court denied this sentencing judge, the Sixth Amendment untimely, motion as *3 and the Missouri Court right to counsel proceed include that of sought affirmed. ing, in which case ineffective assistance of federal habeas relief. proceeding would be cause excusing at types procedural least some of noted, As the Shigemu bar. procedurally ra defaulted his ineffective as by timely sistance claim it in state However, happened that is not what in this Therefore, his federal habeas claim is sentencing," case. At Shigemura complained procedurally barred unless he can show that counsel adequately confer with prejudice cause for his default and resulting his client to trial and did not file the Wainwright Sykes, from it. See 433 U.S. discovery motions or undertake the 72, 87, 97 S.Ct. 53 L.Ed.2d 594 requested. ra had judge The trial responded (1977). Shigemura argues that the ineffec “has pro- raised issues which tive appellate assistance of his counsel in probable duce cause ineffective failing timely to file a Rule 29.15 motion is of proven.” assistance if The court excusing procedural this following order, then issued the written after However, a Rule 29.15 motion commences a reciting orally its terms at the sentencing post-conviction proceeding collateral that is hearing: distinct from the defendant’s direct Lowe-Bey, 28 F.3d at 819-20. Ineffec Court, having The found that tive assistance of post-conviction counsel at a cause of ineffective assistance of counsel proceeding is not “cause” sufficient to over exists in this hereby ORDERS that: n procedural. come a bar.. See Colema v. ra fective Delo, should not straightforward Thompson, argues assistance that this “external” factor caused 115 L.Ed.2d 640 apply of procedural in this case because his (8th Cir.1994) (en banc). trial counsel. contends appellate 751-53, (1991); bar alleging Shigemu Foster v. analysis inef fect the fenders Office resent quired by Rule 29.07 to withdraw within 3. Counsel 2. Counsel for the (10) days defendant final, [*] in this cause [the] hereby [*] upon judgment defendant Special said Hi appointed above shall withdrawal; ...; [*] Public De- per- rep- re- him reasonably rely obey on counsel to 4. Counsel above shall ascer- directive, appellate counsel was tain whether in failing ineffective to file the motion. This filing of pursuant a motion to Rule is not a ftivolous contention. Assume that a 29.15, and, 24.035 or Rule if sentencing judge suspects that a defendant received ineffective assistance of counsel at trial. The might address that added). (Emphasis subsequent Counsel’s through procedure to which the Sixth failure to file Rule 29.15 motion did surely to counsel would attach, violate this order. The court example, by neither deter- ordering part mined that a of alleging consideration of a motion for inef- present trial. Under fective of procedure, should be filed which nor directed judge ultimately counsel to file that hears motion. The any Rule likely 29.15 order implemented 29.07(b)(4), it is judge would instead unambiguously address this concern leaves the decision ordering filing the immediate of a Rule 29.15 whether to file a Rule 29.15 motion to new Delo, (1988); F.3d L.Ed.2d 397 Parkus In these circum- counsel’s discretion.3 (8th Cir.1994). stances, Shigemura’s retained the decision commence a Rule counsel not to appellate very majority takes a narrow and proceeding —even judge’s or- restricted view of the state trial oversight may not constitute product — Paragraph trial court’s writ- der. four default, and excusing “cause” ten order states: claim of ineffective assistance procedurally barred. appointed above ascertain grounds exist for the whether facts and af- the district court is pursuant to Rule firmed. 29.15, and, or Rule such facts *4 exist, grounds shall file the Judge, dissenting. I dissent. Although may not Op. at 252. the trial court appellate coun- have “ordered” or “directed” egregious incompetence This is an ease least, certainly, sel to file a representing a defendant of counsel to ascertain the merits of comparatively minor ease. For the criminal neither. Addi- such a motion. Counsel did property and hin- offenses tionally, opening of the district court’s serving a dering prosecution, is proba- that it had “found that order indicates twenty-year prison term. assistance of counsel ble cause of ineffective brief, Shigemura complained that his nothing, did Because counsel exist[ed].” ineffective assistance. The provided presumptive finding exists. still essentially agreed, finding “proba- trial court unwitting an Procedural default serves as cause,” directed ble just person may have a trap for the who The trial court ra’s counsel to withdraw. grievance the federal courts. That artifi- ap- further ordered just disputes of this cial bar to a resolution particular pointed counsel determine good expanded be without sort should not grounds for an ineffective assis- facts and good No reason exists here. reason. claim and tance relief grounds existed. district court’s failed to follow the nothing. apparently did Under order. He circumstances, petitioner shown has

these procedural de- prejudice for the

cause and only a case of

fault. This is not of the In this official action factor constituted the external of the reheves Carrier, 477 Murray v.

default bar. See

U.S. dissent, days we do not assume 3. Unlike withdraw and the “essentially agreed” final trial counsel shall cause new counsel to be counsel had been ineffective. filed, indigent. an should defendant is have concluded perfect be- Whether for his have new counsel new counsel unhappy A be with his trial counsel. new counsel shall cause he was or not an 29.07(b)(4) finding under Rule facts and to ascertain whether directed pursu- permits appointment of new counsel for part: provides The Rule in relevant ... Rule 29.15. If such ant timely file the new counsel shall probable cause of inef- court finds that If the exists, appropriate motion. of counsel within fective assistance