*1 nature; employees, are entitled to honest but where restrained plant were without in the any union the false statements are made course Jackson nor Reverend that neither activity, any protected kind union it is within the any threats agents made remedy or management, employees to fashion a Board’s discretion Respondent’s exchange activity that protected Jackson’s of that Reverend violation property; civil; quiet that the Gary penalize, perhaps Smith effect does not with not, contrary Respondent’s by rewarding, such employees had viewed some as state- assertions; frenzy near- into erupted ments. Inc., Industries, v. Earle N.L.R.B. riot. deny I would for review and (8th Cir.1993). Grant- enforce the Board’s order of reinstate- would ed, whether the in that the issue ment. repre- day interfered with the of that events month, later that but held election sentation they supports holding
our holding that Ms. Wallace’s October
Board’s zone of activi- conduct fell within the by of the National protected
ties Section Act.
Labor Relations stay with- Jackson’s short
Given Reverend plant, the re- employees’ area Qital ABDULLAH, Hillum Safat exchange Gary with nature of strained Lee also known as Tommie Smith, entry through subsequent and his West, Appellee, entrance, agree I with Board visitors’ encouraging that Ms. Wallace’s conduct to enter Reverend Jackson GROOSE, Appellant. Michael through entrance was neither employees’ No. 94-1783. flagrant not differ in nor and did extreme encouragement any way material Appeals, United States Court of by em- other offered Reverend Jackson Eighth Circuit. disciplined ployees, whom was later none of May 23, 1995. Submitted by Respondent. Decided Jan. Likewise, join court in although I decrying dishonesty by and false statements say
employees, the Board I cannot holding
abused its that Ms. Wal- discretion during
lace’s false the October 7 answers
interrogation right to did not forfeit her Act. If
protections her false afforded
testimony before an administra- under oath preclude law judge
tive reinstate- does ment, Freight System, Inc. see ABF
N.L.R.B., U.S.-, (1994), neither do the false in what
statements Ms. Wallace made interrogation
Board found was a coercive initially
then her after she had exercised questions regarding not to answer
her Had I activities on October judge
been the administrative law
case, might I Judge have West well ruled
did, I am no more tolerant of false state- my colleagues. Employers
ments than are *2 Simont, Gen., Atty. argued,
John W. Asst. MO, City, appellant. Jefferson Louis, MO, argued, Gregory Bailey, R. St. appellee. withdrawn) (who ARNOLD, torney yet objected had not S. Chief RICHARD Before McMILLIAN, trial, GIBSON, jury this order. After a R. Judge, JOHN MAGILL, convicted, BOWMAN, WOLLMAN, FAGG, February HANSEN, BEAM, LOKEN, years imprisonment MORRIS five was sentenced to *3 ARNOLD, MURPHY, and persistent SHEPPARD a offender. Judges, EN BANC.
Circuit
pursued a
in
Abdullah
direct
MAGILL,
Judge.
issues,
arguing, among
Circuit
other
wearing leg
during the state trial de-
irons
Groose, Superintendent of the
Michael
prived him of his Fourteenth Amendment
City
Jefferson
Correc-
of Missouri’s
State
right
appellate
fair
his
to a
trial.
In
(the State), appeals the district
tional Center
brief,
argued
Abdullah never
the
of a writ of habeas
to
requiring
leg
court’s order
wear
irons
Qital Abdullah. Because we
Hillum Safat
implicated
right
his Sixth Amendment
to
proeedurally
barred
believe that Abdullah
Instead,
counsel.2
focused
the
habeas relief on
from
deprivation
the
a Fourteenth Amendment
claim, we reverse.
Amendment
right to fair
the
a
trial because
trial court
I.
be-
not consider less restrictive alternatives
ordering
proceed
fore
to
to trial
corpus appeal
§
This
2254 habeas
stems
leg
Resp. Ex.
five
irons.
F.
cited
conviction Missouri state
from Abdullah’s
Supreme
state cases3 and two United States
weapon
use of a
viola-
court for unlawful
support
eases4 in
this Fourteenth
571.030.1(1) (1986).
§
tion Mo.Rev.Stat.
response,
In
Amendment claim.
State
trial,
origi-
was
At his
state court
argued that Abdullah waived this issue
public
nally
defender.
represented
that,
contemporaneously object
to
and
trial,
irons,
leg
Prior to
while
event,
trial court
within its
was
attorney
proceed
dismiss
and
moved to
ordering leg
discretion
irons
Ab-
inquiry,
general
a
Faretta1
pro se. After
attempted
escape
prior
dullah had
to
on a
proceed pro
Abdullah to
se.
court allowed
Resp.
occasion.
Ex.
Because Abdullah
G.
thereafter,
Immediately
prosecutor
objected
requiring leg
had not
to
leg
require that Abdullah remain in
moved to
trial,
Appeals
irons at
the Missouri Court of
throughout
the trial because
irons
he
resulting
plain
reviewed this claim for
ten-year
error
sentence on a related mat-
under
injustice
in manifest
under Mo.R.Crim.P.
attempted
escape
and
to
ter
had
29.12(b).
review,
undertaking
In
during
year
prior
a trial one
same courthouse
Appeals
“In light
The
trial court
Missouri Court of
noted:
matter.
ordered
proceed
overwhelming proof
guilt,
Abdullah to
trial with
of defendant’s
court-appointed
plain
resulting
Neither Abdullah nor his
at- we find
in manifest
[no
California,
422 U.S.
95
he
wear
1. Faretta v.
S.Ct.
sentation was made to
irons because
(1975).
previous
4H
injustice],”
reviewing
Abdullah’s convic-
federal
corpus pe
affirmed
When
West,
tition,
usually only
we can
tion. State
S.W.2d
consider “those
decision,
(Mo.App.1988).
petitioner
In its
the Missouri
claims which
presented
has
Appeals
did not cite federal law.
the state court in
pro
accordance with state
Leapley,
cedural rules.” Satter v.
writ of
petitioned
Abdullah then
for a
ha-
If
prisoner
has
§
corpus, pursuant
beas
28 U.S.C.
his habeas
claims
court, adopting
The district
the rec-
court, the claims are
if
defaulted
a state
magistrate judge,
ommendations of the
de-
precludes
rule
him
although
termined that
Abdullah failed to
issues
proce
now.
We
not review
trial,
object
he was not
durally
*4
claim
defaulted habeas
because “a
procedurally
raising
barred from
this claim
petitioner
habeas
who has failed to meet the
appellate
because the Missouri
court’s discre-
procedural requirements
present
State’s
tionary review of the claim constituted a
ing his
deprived
federal claims has
the state
Appellant’s
review
the merits.
Adden-
of an opportunity
courts
to address those
dum 16-20.
the district court
claims
the first instance.” Jones v. Jerri
grant
not
condition its
of habeas relief on
son,
(8th
(internal
849,
Cir.1994)
20 F.3d
finding
a
State
the
violated Abdullah’s
omitted).
quotation and citation
“In all cases
rights
process by
to
constitutional
due
re-
prisoner
in which a state
has defaulted his
quiring
to trial in
pursuant
federal claims in state court
to an
Rather,
sua
district
determined
independent
adequate
and
state
sponte, rejecting
Teague5
the State’s
“new
rule, federal habeas review of the claims is
arguments,
rule”
that Abdullah was entitled
prisoner
barred unless the
can demonstrate
to habeas relief because his
Amend-
cause for the
prejudice
default and actual
rights
were violated in that he did not
alleged
a result of the
of
violation
federal
knowingly
intelligently
exercise his
law, or demonstrate that
to
failure
consider
self-representation
of
since
the claims will
in a
result
fundamental mis
proceed-
dangers
court did not
include
carriage
justice.”
Thompson,
Coleman v.
ing
colloquy.
se in
in its
irons
Faretta
722, 750,
2546, 2565,
501 U.S.
111 S.Ct.
appealed, asserting
The State
Abdul-
that:
(1991).
L.Ed.2d
procedurally
asserting
lah was
barred from
claim;
such,
the district court’s
an-
procedurally
decision
As
Abdullah is
Teague;
a
nounced
new rule
violation of
barred
habeas relief on his
apply
and the district court failed
claim
to
Sixth Amendment
unless he
court,
claim
harmless error review standard mandated
the Missouri state
can
Abrahamson,
v.
prejudice
Brecht
507 U.S.
113 demonstrate
cause
the de
A
S.Ct.
a writ of habeas
(8th Cir.1995).6
rehearing
II.
facts,
present”
also
but
prisoner
corpus
Before
state
a
entitled
substance of his federal habeas
claim.
relief,
Harless,
6, 103
to federal habeas
first Anderson
S.Ct.
U.S.
276, 277,
(1982)
curiam).
exhaust his
remedies
(per
“refer process Amendment due violation for provision, teenth particular constitutional right, a pres- case, hearsay does not improper or a case admission constitutional federal claim). ent clause The Ashker constitutional is- confrontation pertinent federal analysis that confrontation-clause state court. Ashker v. court noted in the Missouri sue” Cir.1993) (8th analysis separate is a does not necessari- Leapley, analysis. (internal ly overlap hearsay Id. at citation quotation and Furthermore, a claim the state presenting merely similar the federal courts process goes saying It without that a due satisfy insufficient claim is analysis separate irons and distinct requirement. Duncan v. fairly presented analysis. from a Faretta The Fourteenth -, -,
Henry, process challenge requires Amendment due (1995) curiam). (per 130 L.Ed.2d possibility balancing result ing “the need to the Missouri On direct custody in the maintain order courtroom is Appeals, Abdullah raised three persons.” over incarcerated United States v. (1) of other erroneous admission sues: Stewart, 20 F.3d On (2) evidence; prosecutorial improper crimes *5 hand, determining the other whether de evidence; on crimes comment the other properly proceed fendant elected to se (3) process Fourteenth Amendment due requires determining under Faretta whether challenge requiring court’s order the trial was defendant’s waiver of counsel know earlier, leg As Abdullah’s discussed ingly, voluntarily intelligently and made. state court fo challenge Yagow, United States v. solely due on Amendment cused Fourteenth Cir.), grounds. state brief does not process His 103, 121L.Ed.2d 62 (1) any that his waiver of contain knowing was under Faretta neither counsel overlap inqui- is no the two There between intelligent the trial court or nor such, deprived ries. As Abdullah the Mis- (2) irons; proceed pro se dered opportunity souri state courts the first Amendment; (3) to a to the Sixth refer refer Thus, claim. address his Sixth Amendment Faretta; (4) involving or refer to federal case fairly present Abdullah failed to his Sixth court a Sixth Amendment a state case Amendment claim to the Missouri state Likewise, court opinion the state con issue. Duncan, at-, courts. See tains no reference to the Sixth Amendment (arguing S.Ct. at 888 to state court any law. or other federal evidentiary amounted justice fairly present law under state did not Accordingly, believe Abdullah we claim). process federal due “fairly present” failed to Sixth Amend Faretta to ment claim under the Missouri B. Available State Remedies Although state court.7 Abdullah process fairly Amendment due his Fourteenth Abdullah failed to Because concerning appearance present claim at trial his Sixth Amendment claim to the irons, encompass court, state does we determine whether he may rights present claim that his Faretta this claim Amendment to the state court though the precluded by procedur violated even claims are now. If were state underlying rule, procedurally on the factual basis. al based same Abdullah barred from level, claim, argu- court 7. At the district Abdullah's relief on a Sixth Amendment concerning required present ments irons focused on a to first was substance process challenge due Fourteenth Amendment this claim to the state courts so that Missouri right opportunity any perceived and did a Sixth Amendment not raise had the first to correct argument. apparently district counsel independently The constitutional errors. That the district as Abdullah, opposed determined Abdullah's Sixth raised the Sixth Amend- rights any Amendment were violated. we issue does not Abdullah from ment procedural relieve any impact proce- present do not believe this has on the bar analysis. dural bar To be entitled to habeas Amendment claim to the state court. court; on habeas relief his Sixth Amend- he did not his Sixth Thus, claim he can demonstrate cause right unless Amendment to counsel claim. a miscarriage or that since Abdullah has offered no cause for his if occur we do consider the merits of failure to raise his Sixth Amendment Satter, claim. level, F.2d at 1262. procedurally it is barred and do not we consider whether Abdullah has Abdullah has no non-futile state remedies prejudice.9 shown already pur- to him. Abdullah available has West, his direct sued 743 S.W.2d III. pursuing 592. Abdullah is time-barred from postconviction relief under Mo. reasons, For foregoing the district R.Crim.P. Rule 29.15 29.15. is the exclusive of a writ of corpus procedure allege in Missouri to that “the reversed, vacated, for a new trial is imposed conviction or sentence violate case is with remanded instructions to constitution and laws of this state dismiss the for writ of habeas constitution of the United Mo. States.” procedurally barred. 29.15(a). R.Crim.P. sentenced underlying charge February on GIBSON, JOHN R. Judge, Circuit Resp. B. Ex. Pursuant to Rule McMILLIAN, joins, whom Circuit Judge, 29.15(m), 30,1988, had until June dissenting. file Rule 29.15 motion. Abdullah’s failure respectfully I dissent. complete to file this motion constitutes a It must first said today that the court waiver under Rule completely decides a different than case Therefore, 29.15.8 defaulted has *6 by panel. decided by his Amendment claim pursue it in 29.15 a Rule motion. The Court long-standing flies the face of
precedents
result,
of this circuit to
its
reach
so,
doing
severely
C. Cause
playing
tilts the
field
Abdullah.
It
denies
Accordingly,
question
next
is
relief because
did not
tell the Missouri
whether Abdullah has shown sufficient cause
Appeals clearly
of
enough
Court
what
to excuse his failure to
his
raise
theory underlay
objection. Astonishing-
Amendment claim state court. Abdullah
ly,
theory
accepts
Court
that
why
offers no reason
he failed to
of Missouri did not raise until its motion for
Sixth Amendment
to the state court.
rehearing.
Reply Opposition
Suggestion
In his
for
Bane,
Rehearing
simply
En
argued
panel
asserts
The State
before the
that
range
procedural
that “Petitioner raised the full
of Con Abdullah committed
default at
questions
by
object
stitutional
shackling,
raised
trial
failure
court’s order that the
trial
Appeals plain
Petitioner stand
and the Missouri Court of
er-
and defend
while
himself
shackled
ror review did
waive
the trial default.
jury.”
irons before
as
conceding
noted
read the
brief
We
State’s
as
above,
only presented
adequately
shackling
his Four Abdullah
raised the
is-
process challenge
Appeals:
teenth Amendment due
before
sue
the Missouri Court of
29.15(m) provides:
prior
pending,
8. Rule
is
motion under Rule 27.26
post-conviction
gov-
apply
proceed-
shall
to be
This Rule
shall
relief
continue
29.15
to all
ings
pronounced
provisions
wherein sentence is
on or
erned
of Rule 27.26 in effect
1,
January
pro-
after
If
sentence
on the date the
motion
filed.
1, 1988,
prior
January
prior
nounced
no
27.26,
pursuant
motion has
filed
been
to Rule
9. Nor does Abdullah meet the fundamental mis-
may
motion
Rule
be
under this
29.15
filed on
carriage
justice exception
he has
30,
or before June
to file
Failure
showing
actually
no
he is
innocent of
made
motion on or before June
shall con-
underlying
state crime for which he was
complete
pro-
stitute a
waiver of the
convicted,
Satter,
weapon.
use of a
See
unlawful
ceed under
Rule 29.15.
sentence
this
If a
the trial (8th Cir.1991); corpus. in federal habeas 1002 n. Wealot complain (8th Armontrout, Cir.1991); recognized [Abdullah] had 948 F.2d State] [The grievance Hertz, on Randy direct sought to raise Fed- 2 James S. Liebman and reported that the Missouri also appeal, but Corpus Habeas Practice and Procedure eral (2d 1994). ¶ that because the Appeals had held § Failure 26.2 a ed. to assert preserved appeal, it was not grievance theory rights, just the State’s waives “plain only under be considered could object to a defendant’s failure to (Citations standard. error” rights. can The court and, the State to unwaive a waivable allows time, for rehear- first in its motion For the indeed, a waived defense. legal theory a new substituted ing, the State procedural default in the based on Abdullah’s implied perhaps would We have that we Appeals and abandoned Missouri party failed consider to raise theory about Abdullah’s its earlier argu if our to consider properly failure at trial. default miscarriage justice. would result in a Variety fails to raise or discuss issue party If a v. American Guild See Smith (8th Cir.1966) (de Artists, appeal, we deem him to have abandoned F.2d Techno-Metrics, Inc. Burnette clining the issue. to consider raised (8th Inc., Cir.1994); 44 F.3d 642 n. enforcing TSI waiver would not result in where Corp., Jasperson v. Purolator Courier justice), miscarriage of (8th Cir.1985); Pedicord v. F.2d Swenson, F.2d It certainly There would be no arguments on to raise new motion is too late holding the State the same Farmers Ele- rehearing. See Jamestown principle it to enforce on seeks Abdullah. Mills, Inc., vator, v. General Inc. merely enough It is not for the State (8th Cir.1977); see also Wiener v. “procedural default” intone mantra when Co., Planting Eastern Arkansas identify it did not before the the facts (8th Cir.1992) (arguments 1357 n. 6 for, as that constitute the default — ordinarily party’s opening raised *7 today, after requires can attest this Court brief, reply); than Harstad First rather parties their theories with some Bank, Cir. American precision. 1994) arguments for (party cannot raise first letter); 28(j) App.P. in Fed.Rule time Ward, Moore Bernard J.
James Wm. ¶ n. 228.02[2]and Federal Practice
Moore’s
(2d 1995). ed. long on that Today the turns its back Judy CLARK, Appellant, K. course, are, of situ- precedent. settled There permit argument to we ations which Shirley CHATER, S. Commissioner sponte. raised late or even raise it sua For Security, Appellee. of Social instance, appellate courts sometimes raise sponte garbling to avoid legal questions sua No. 95-2835. Nat’l Bank the law. See United States Appeals, United States Court Oregon Independent Agents, 508 Ins. Eighth Circuit. 439,---, 2173, 2178-79, (1993). However, this is 11, 1996. Submitted Jan. parties’ case where Court corrects Feb. Decided erroneous statements of the law. The state did not assert before in procedural
that Abdullah was default in briefs before the Missouri