Jоseph Amrine, Petitioner-Appellant, v. Michael Bowersox, Superintendent, Potosi Correctional Center, Respondent-Appellee.
No. 96-1892
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: October 17, 2000; Filed: January 5, 2001
Before BEAM, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.
Before the court is Joseph Amrine‘s petition for writ of habeas corpus under
I.
Gary Barber, an inmate in the Missouri state penitentiary in Cole County, Missouri, was stabbed to death in a prison recreation room on October 18, 1985. Amrine was charged with the crime. The state presented evidence at trial that Amrine had killed Barber and which suggested that it happened because Barber had told other inmates that he had had sex with Amrine. Inmate Terry Russell testified that relations between Amrine and Barber were tense because of the rumors and that Amrine had confronted Barber and threatened him about a week before the murder. Russell acknowledged that he had not seen the stabbing, but testified that Amrine later confessed to him that he had killed Barber. Inmates Randy Ferguson and Jerry Poe both testified that they saw Amrine stab Barber. The state also presented evidence that blood was found on the clothing Amrine was wearing at the time of the stabbing, but a state serologist testified that the blood sample was too small to determine definitively the source or age of the stain.
The jury convicted Amrine of first degree murder, and the penalty phase of the trial commenced. The state called several prison employees who were familiar with Amrine to testify about him. One of these witnesses was Bill Armontrout, who was warden of the state penitentiary. Armontrout testified that based upon his personal experience with the Department of Corrections, he believed that imposing the death penalty for inmate-on-inmate homicides had an impact upon the prison population and deterred incidents of violence. Armontrout also testified that he had known Amrine since his incarceration and that he was not a peaceable inmate. The state presented other witnesses who testified that Amrine was an aggressive prisoner. Corrections Officer Steven Asher testified that he had seen Amrine chasing another inmate with a knifе in 1982. Amrine testified on his own behalf. He admitted that he had had “a bad institutional record” in prison, that he had possessed knives on several occasions while in prison, and that he had once attempted to extort money from a fellow prisoner. Amrine testified that he did not hold any “hard feelings towards the jury” for convicting him and that he had not killed Barber. Amrine‘s counsel did not call any other mitigating witnesses.
Amrine then filed his habeas petition in federal court, raising numerous claims of constitutional error. The federal district court considered the merits of claims which had been presented in state court and concluded that they did not entitle Amrine to relief. The remaining claims had not been “properly presented” to the state courts and were therefore procedurally barred. The court concluded that Amrine had failed to show either cause and prejudice to excuse his default or sufficient evidence of actual innocence to permit review of the defaulted claims. Although Ferguson and Russell had recanted their trial testimony, the court noted that “the testimony of Jerry Poe against petitioner remains unchallenged.” Amrine v. Bowersox, No. 90-0940, slip op. at 15 (W.D.Mo. Feb. 26, 1996). The court cоncluded that despite the testimony by Ferguson and Russell at the state post conviction hearing that they had falsely implicated Amrine, “it cannot be said that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt in light of the continued existence of witness Poe‘s testimony.” Id. at 16.
We concluded that Amrine was entitled to a limited remand under Schlup v. Delo, 513 U.S. 298 (1995), because Poe‘s affidavit was new evidence which, if believed, would “directly contradict[] the key evidence against him at trial.” Amrine I, 128 F.3d at 1228. Schlup provides that a habeas petitioner may obtain review of otherwise barred claims if he produces reliable new evidence not available at trial establishing that it is more likely than not that no reasonable juror would hаve convicted him in light of the new evidence. Id. at 1226-27. The district court was to conduct an evidentiary hearing to determine whether Amrine‘s evidence was “new and reliable.” Id. at 1230. We pointed out that “evidence is new only if it was not available at trial and could not have been discovered earlier through the exercise of due diligence.” Id. We recognized that the court might be required to make “credibility assessments” to determine reliability. Id. at 1228. If it were to find the evidence both new and reliable, the court was then to determine whether the evidence met the Schlup standard enabling the barred constitutional claims to be considered. Id. at 1230.
On remand, the district court held an evidentiary hearing at which both sides presented evidence. Amrine called former inmates Russell and Kevin Dean, and former
The court considered the evidence in light of the remand order. The court found that only Poe‘s recantation was new evidence since Ferguson and Russell had changed their testimony before the court ruled on Amrine‘s habeas petition, Noble had presented substantially the same testimony at trial, and Dean had been available to testify but was not called. The court went on to evaluate the new evidence and found that Poe was not a credible witness and that his recantation was not reliable. Among the facts on which the court based this finding was Poe‘s unsubstantiated claim to have written recantation letters to the Missouri Supreme Court, United States District Judge Russell Clark, and the Governor of Missouri, but those officials reported that they had no such letters in their files. Poe had also refused to admit to his previous convictions for threatening to kill state prison officials and for threatening a prosecutor‘s daughter, and he admitted to “being angry at the state . . . thus possess[ing] ample motive to undermine the state‘s conviction of” Amrine. Amrine v. Bowersox, No. 90-0940, slip op. at 6 (W.D.Mo. October 29, 1998). Since the only new evidence proffered by Amrine was unreliable, the court concluded that no further Schlup analysis was necessary.
Amrine now appeals the district court‘s denial of his habeas petition. He challenges the court‘s finding that his proffered evidence was not sufficiently new and reliable to warrant engaging in a Schlup actual innocence analysis. He also contends that the district court erred in finding that he did not receive ineffective assistance of counsel at trial and that his rights under the Eighth and Fourteenth Amendments had not been violated. The state responds that the district court correctly found that Amrine did
II.
A habeas petitioner who raises a gateway claim of actual innocence must satisfy a two-part test in order to obtain review of otherwise procedurally barred claims. First, the petitioner‘s allegations of constitutional error must be supported with new reliable evidence not available at trial. Schlup, 513 U.S. at 327-28. Second, the petitioner must establish “that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Id. at 327.
Amrine cоntends that the district court erred in finding that his proffered evidence was not sufficiently new or reliable to warrant proceeding to the second step of the actual innocence analysis. He maintains that the district court misapplied Schlup when it considered only Poe‘s recantation for purposes of his actual innocence claim. The state contends that the district court correctly found that Amrine had not put forth sufficient evidence of actual innocence to permit merits review of his barred claims.
The district court followed our instructions on remand consistent with Schlup. It ruled that evidence is new only if it was not available at trial and could not have been discovered earlier through the exercise of due diligence. The testimony of Noble, Dean, Russell, and Ferguson was thus not new evidence, and the court did not err by deciding to focus on the testimony of Poe. The district court was to “make its own credibility determinations” in order to ascertain whether the new evidence proffered by Amrine was sufficiently reliable to warrant conducting a Schlup actual innocence analysis. Amrine I, 128 F.3d at 1230. After considering the videotaped deposition, the district court fоund that Poe was not a credible witness and that his recantation could not be relied upon. The court clearly explained its reasons for finding that Poe‘s testimony was not reliable. This is a credibility determination which is entitled to great
In order to prevail on his actual innocence claim, Amrine was requirеd to show “new reliable evidence . . . not presented at trial establishing that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Lee v. Kemna, 213 F.3d 1031, 1039 (8th Cir. 2000) (citations omitted). Amrine did not present such evidence, and consequently cannot utilize the actual innocence gateway. Thus, the merits of his procedurally barred claims cannot be considered.3
Amrine also appeals the disposition of his non-procedurally barred constitutional claims. Amrine has briefed four constitutional challenges to his conviction and sentenсe. First, he claims that he received ineffective assistance of counsel during the guilt phase of his trial. Second, he claims that the admission of Warden Armontrout‘s testimony at the penalty phase violated his rights under the Eighth and Fourteenth Amendments and that his attorney was constitutionally ineffective in failing to rebut and object to this testimony. Third, he claims that his trial counsel was ineffective in failing to present mitigating witnesses to testify on his behalf at the penalty phase. Finally, he claims that admission of evidence in the penalty trial that he had previously assaulted a fellow inmate violated his rights under the Eighth and Fourteenth Amendments and that his attorney was constitutionally ineffective in failing to rebut and object to this evidence. We review the district court‘s denial of these constitutional claims de novo. See Richardson v. Bowersox, 188 F.3d 973, 977 (8th Cir. 1999).
A.
Amrine contends that his counsel rendered ineffective assistance during the guilt and sentencing phases of his trial. He complains that at trial his counsel failed 1) to cross examine state‘s witnesses Ferguson and Poe adequately about prior inconsistent statements about the crime; 2) to impeach the credibility of Russell; 3) to interview othеr witnesses who would have testified that Russell had killed Barber; and 4) to elicit evidence diminishing the probative value of the blood found on Amrine‘s clothing.4
Amrine‘s claim of ineffective assistance at the guilt phase of trial fails because he has not shown that he was prejudiced by his counsel‘s performance. Amrine‘s counsel called witnesses, put in exhibits, and cross examined the state‘s witnesses. Counsel called six inmates to testify that Amrine was not the killer. The state serologist admitted that he could not definitively trace the blood on Amrine‘s clothing to Barber. Even if counsel had cross examined Poe about a prior inconsistent statement to investigators about the murder, impeached the credibility of the state‘s inmate witnesses, and called additional witnesses favorable to Amrine, a reasonable probability does not exist that “the results of the proceeding would have been different.” Id. at 694. There was strong evidence presented by the state, and the jury evaluated the credibility of the various witnesses and found the state‘s witnesses more believable. We cannot say that a reasonable probability exists that the jury would not have found Amrine guilty if his counsel had also undertaken the additional measures now advocated. Because Amrine has not shown that he was prejudiced by counsel‘s performance at the guilt phase of trial, we need not discuss whether it was outside “the wide range of professionally reasonable assistance.”
Armontrout testified that no murders were committed in the penitentiary for thirty months after an inmate was sentenced to death in 1982. Amrine claims that this testimony was “demonstrably false” and that his attorney was deficient in failing to cross examine Armontrout about it. Prison records indicate that although there were no murders in 1982 or 1983, there were three prison murders in 1984. It is not clear however that Armontrout‘s testimony was “demonstrably false,” and Amrine has not shown that counsel‘s failure to cross examine him about the exact timing of these other prison murders was constitutionally deficient.
Nor can Amrine show that he was prejudiced by his counsel‘s failure to call rebuttal witnesses against Armontrout. The state presented numerous witnesses at sentencing who were familiar with Amrine‘s behavior and who characterized him as an aggressive inmate. Amrine himself admitted that he had “a bad institutional record,” that he had possessed knives in prison on at least four occasions, and that he had previously attempted to extort money from another prisoner. Given that this extremely damaging testimony was already before the jury, no reasonable probability еxists that the result of the proceedings would have been different if counsel had called witnesses to rebut Armontrout‘s testimony.
Amrine also maintains that his counsel was ineffective because he failed to investigate whether there were any witnesses willing to testify on his behalf at the penalty trial. At the state post conviction hearing, prison staff member Bob Faith and
We agree with the district court that Amrine‘s counsel did not fulfill his obligation to investigate adequately whether there were witnesses willing to testify on his client‘s behalf at sentencing. See Laws v. Armontrout, 863 F.2d 1377, 1385 (8th Cir. 1988) (“[i]f counsel through neglect failed to discover [mitigating] evidence [at sentencing], then counsel will be found ineffective“). Nevertheless, Amrine has not shown that he was prejudiced by his attorney‘s deficient performance. The proposed testimony of family members would have been cumulative and similar to that of Amrine himself, which was essentially a plea for mercy. The state presented numerous witnesses who testified to Amrine‘s aggressive conduct, and Amrine himself admitted that he had possessed knives on several occasions in prison. Given the large amount of damaging еvidence, there is no reasonable probability that the ultimate result of the penalty trial would have been different if Faith and Amrine‘s relatives had been called as mitigating witnesses.
B.
Amrine also contends that other constitutional rights were violated by the admission of the testimony of Armontrout at the penalty phase of trial. At the time of Amrine‘s trial, Armontrout was the warden of the state penitentiary. Among other things, he testified at sentencing that it was his belief that when an inmate was sentenced to death for murdering another inmate, it had “quite an effect” on the prison
The Supreme Court has stated that “in capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (internal citations omitted). Yet while the Constitution requires “an individualized determination on the basis of the character of the individual and the circumstances of the crime,” at the penalty phase of the trial, it “does not require the jury to ignore other possible aggravating factors in the process of selecting . . . those defendants who will actually be sentenced to death.” Zant v. Stephens, 462 U.S. 862, 878-79 (1983) (emphasis supplied).
The admission of Armontrout‘s testimony on the possible deterrent effect of the death penalty on the prison population did not prevent the jury from making an individualized determination as to whether capital punishment was appropriate in Amrine‘s case and thus did not violate the Constitution. Nor can Armontrout‘s testimony be characterized as scientifically unreliable or demonstrably false. Armontrout never suggested that his opinion on the deterrent effect of the death penalty was based upon scientific or statistical evidence. Instead, the record indicates that he made it clear that this was his personal opinion, garnered from his years of working in
To determine whether a due process violation has occurred, a court must examine the totality of the circumstances and determine whether “the error was so gross, conspicuously prejudicial, or otherwise of such magnitude that it fatally infected the trial and failed to afford petitioner the fundamental fairness which is the essence of due process.” Mercer v. Armontrout, 844 F.2d 582, 587 (8th Cir. 1988) (citations omitted). Amrine has not shown that the admission of Armontrout‘s testimony so fatally infected his penalty trial that it resulted in the denial of due process.
Amrine has not established that the admission of Armontrout‘s testimony at the penalty trial violated his constitutional rights. We accordingly affirm the district court‘s denial of this claim.
C.
Amrine also argues that the introduction of evidence at the penalty phase which linked him to the 1984 stabbing of inmate Willie Dixon violated his Eighth and Fourteenth Amendment rights. The district court denied these claims on the grounds that Amrine did not raise them in state court. Amrine appears to argue that he properly raised his Eighth and Fourteenth Amendment claims on direct appeal. We conclude that these claims were not properly preserved. We can therefore reach the merits only if Amrine can show cause for his default and prejudice or actual innocence. Lee v. Kemna, 213 F.3d 1037, 1038 (2000). Amrine states simply that his procedural default
IV.
After a careful review of the record, we conclude that Amrine has not shown actual innocence entitling him to review of his procedurally barred claims or that his constitutional rights were violated. We therefore affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.