Roderick NUNLEY, Petitioner-Appellant v. Michael S. BOWERSOX, Respondent-Appellee.
No. 13-3627.
United States Court of Appeals, Eighth Circuit.
Submitted: Jan. 14, 2015. Filed: April 27, 2015.
Rehearing and Rehearing En Banc Denied June 10, 2015.
784 F.3d 468
Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
* Judge Benton did not participate in the consideration or decision of this matter.
III.
For these reasons, we affirm the judgment of the district court as well as its award of costs.
Michael J. Gorla, St. Louis, MO, argued (Jennifer Herndon, Florissant, MO, on the brief), for appellant.
Michaеl J. Spillane, Asst. Atty. Gen., Jefferson City, MO, argued (Chris Koster, Atty. Gen., on the brief), for appellee.
Roderick Nunley pled guilty in Missouri state court to the kidnapping, rape, and murder of a fifteen year old girl nаmed Ann Harrison. After Nunley waived his right to jury sentencing, the state court sentenced him to death. He now brings this
In January 1991, Nunley pled guilty in a Missouri court to kidnapping, raping, and murdering Ann Harrison. The state court sentenced Nunley to death, and shortly
Nunley filed a
Thereafter, the Missouri Supremе Court set Nunley‘s execution date for October 20, 2010, and Nunley moved to recall the mandate. He argued that his sentence violated Ring because a judge had made the factual findings which supported the “aggravating circumstance necessary for imposition of the death penalty.” See 536 U.S. at 609, 122 S.Ct. 2428. He again argued that Whitfield had applied Ring retroactively as a matter of Missouri law. See 107 S.W.3d at 268-69. The state supreme court denied his motion, reasoning that Nunley had waived his right to jury sеntencing when he made the strategic decision to plead guilty. See State v. Nunley, 341 S.W.3d 611, 621 (Mo.2011) (en banc).
Nunley then filed a supplemental habeas petition in federal court arguing that Whitfield had guaranteed his right to have a jury find thе aggravating circumstance necessary for imposition of the death penalty, and the supreme court‘s refusal to grant his request for jury sentencing thus deprived him of a “liberty interest” securеd by the
Nunley argues that he has a liberty interest in capital jury sentencing because Whitfield applied Ring retroactively in Missouri. See Whitfield, 107 S.W.3d at 268-69. He asserts that if “a State has provided for the imposition of criminal punishment in the discretion of the trial jury,” a defendant in such a case has a liberty interest that the ”
The record indicates, however, that Nunley unequivocally waived his right to jury sentencing when he pled guilty. At that time the state trial court informed Nunley that by entering a guilty plea, he was giving up his constitutional right to trial by jury and his right to jury sentencing. Nunley acknowledged these warnings and waived his rights. He has since admitted that he made a strategic choice to waive jury sentencing bеcause he believed a court was less likely to be inflamed by the details of his crime than a jury. After the trial court sentenced him to death, Nunley changed his tactics and moved to withdraw his plеa. Although the state supreme court later vacated the trial court‘s judgment and remanded “for a new penalty hearing, imposition of sentence and entry of new judgment,” it did not “reverse thе plea” or order “a new plea hearing.” Nunley, 923 S.W.2d at 916, 919. Nunley‘s guilty plea and waiver of jury sentencing thus remained in effect on remand, and he has not established that the state supreme court unreаsonably applied clearly established federal law by denying his motion to withdraw his plea. See Losh, 592 F.3d at 823.
Nunley argues that his waiver was not knowing or voluntary because at the time he pled guilty, capital defendants had “no recognized right” to have a jury find the aggravating circumstance necessary for imposition of the death penalty. See Halbert v. Michigan, 545 U.S. 605, 623, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005). Nunley nevertheless has no recognized federal right under Ring given that the Supreme Court did not make thаt decision retroactive. See Schriro, 542 U.S. at 358, 124 S.Ct. 2519. State law offers him no additional relief. The Missouri Supreme Court has explained that Whitfield only applies to cases in which a judge imposed the death penalty after a jury deadlocked over a defendant‘s sentence; it does not apply to defendants “who strategically pled guilty to avoid jury sentencing.” Nunley, 341 S.W.3d at 622 (citing Whitfield, 107 S.W.3d at 261-62). We “may not re-examine a state court‘s interpretation and application of state law” in deciding a
Nunley also challenges the constitutionality of the statutory scheme under which he was convictеd, asserting that it violated Ring and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The relevant Missouri statute provided that no “defendant who pleads guilty to a homicide offense ... shall be permitted a trial by jury on the issue of punishment to be imposed, except by agreement of the state.”
The Missouri Supreme Court rejected Nunley‘s challenge to
Finally, Nunley argues that the state suprеme court made an “unreasonable determination of the facts in light of the evidence presented in the state court” by concluding that he had waived his right to jury sentencing. See Davis v. Norris, 423 F.3d 868, 881 (8th Cir.2005). Nunley contends that he revoked his waiver by requesting a jury for his second sentencing proceeding after remand and that the state supreme court‘s conclusion to the contrary was unreasonable. The record establishes, however, that the Missouri Supreme Court had only remanded the case for a new penalty hearing. See Nunley, 923 S.W.2d at 916. The court never reversed the plea or ordered a new plea hearing. Id. Given that Nunley‘s waiver was still in effect when he attempted to adopt a new strategy and requested jury sentencing at his second capital penalty рroceeding, the state supreme court did not make an unreasonable factual determination in light of the evidence presented. See Davis, 423 F.3d at 881.
For these reasons we affirm the judgment of the district court.