Taylor v. Roper

Filing 93

ORDER - petitioner's Supplemental Petition 84 is DENIED. Signed on 9/12/14 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
LEON VINCENT TAYLOR,
Petitioner,
vs.
DONALD ROPER,
Respondent.

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Case No. 04-8002-CV-W-FJG

ORDER
Pending before the Court is Petitioner’s Supplemental Petition for Writ of Habeas
Corpus (Doc. No. 84).
Petitioner argues that on June 17, 2003, the Missouri Supreme Court issued a
decision finding Ring v. Arizona, 536 U.S. 584, 609 (2002), to be retroactive to cases
pending on collateral review where a judge made the factual determinations imposing a
sentence of death.

State v. Whitfield, 107 S.W.3d 253, 265-69 (Mo. banc 2003).

Petitioner indicates that he filed a motion to recall the mandate in the Missouri Supreme
Court raising a claim under Ring on September 7, 2010, after his federal habeas
proceedings had concluded. See Doc. No. 84, Ex. 1. On May 27, 2014, the Missouri
Supreme Court overruled the motion to recall the mandate. See Doc. No. 84, Ex. 2.
Petitioner argues that with the Missouri Supreme Court’s denial of the motion to recall the
mandate, the question of whether petitioner’s due process rights were violated when
Missouri failed to retroactively apply Ring is now ripe for habeas review.
I.

Background and Procedural History

The Missouri Supreme Court described the facts in Taylor’s case as follows:
On April 14, 1994, Taylor, his half-brother Willie Owens,
and his half-sister Tina Owens were driving in Tina’s car,
discussing various robbery possibilities. Taylor

suggested a gas station in Independence where only one
person would be working. The trio went to the station and
purchased some gasoline. Taylor asked whether they
were going to rob it. Tina Owens said no because a little
girl was inside. Sarah Yates, an eight-year-old, was
keeping company with Robert Newton, her step-father
and the gas station manager.
The three left the station, only to return a few moments
later after the oil light came on. Willie Owens went into
the station and asked for some oil. Taylor next entered
the store and stated they needed a different weight of oil.
Taylor then drew a pistol and stated that he would shoot
Newton unless he gave them money. Newton complied,
handing Owens approximately $400 in a bank money
bag. Owens took the money and returned to the car.
Taylor directed Newton and the child to the station’s back
room. Taylor shot Newton once in the head, killing him.
Taylor then pointed the gun at the child. Taylor pulled the
trigger, but the gun jammed and did not discharge.
Frustrated, Taylor locked the child in the back room and
returned to the car. Taylor told Willie and Tina Owens
that he had shot the man and that he had to go back
inside to get the little girl. However, because the
Owenses wanted to leave, they then drove away.
State v. Taylor, 944 S.W.2d 925, 930 (Mo. banc 1997).
This Court previously summarized the procedural history of this case as follows:
Petitioner was convicted upon his plea of not guilty of
first-degree murder, first degree robbery, first degree assault,
and three counts of armed criminal action in Jackson County,
Missouri, Case No. 94-1105. The jury in that trial deadlocked
on the issue of punishment for the offense of first degree
murder. The trial judge then set his punishment at death for
first degree murder, finding three aggravating circumstances
to be sustained beyond a reasonable doubt. As to the other
offenses, the trial judge sentenced petitioner to life
imprisonment for robbery, fifteen years for assault, and one
hundred years for each count of armed criminal action, and
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ordered the sentences be served consecutively to each other
and consecutively to the death sentence, for a total sentence
of death plus life plus 315 years.
Petitioner appealed his convictions and sentences to the
Missouri Supreme Court. Additionally, while the appeal was
pending, petitioner filed a motion for post-conviction relief
pursuant to Mo. Sup. Ct. R. 29.15. The trial court held an
evidentiary hearing, and denied petitioner’s 29.15 motion on
March 18, 1996. Petitioner appealed the denial of relief, and
the case was consolidated with the direct appeal of the
conviction and sentence.
On April 29, 1997, the Missouri Supreme Court affirmed
petitioner’s convictions, all of his sentences except the death
sentence, and the denial of postconviction relief. State v.
Taylor, 944 S.W.2d 925 (Mo. 1997). The Missouri Supreme
Court held, however, that improper final argument by the
prosecutor required a new penalty phase. Id. at 938.

On remand, a new penalty phase was conducted. The
second jury recommended a sentence of death, and the
trial court sentenced Mr. Taylor to death on April 22,
1999. Mr. Taylor appealed from the sentence to the
Missouri Supreme Court, which affirmed petitioner’s
death sentence on April 4, 2000. State v. Taylor, 18
S.W.3d 366 (Mo. 2000). Petitioner filed a petition for writ
of certiorari to the United States Supreme Court, which
was denied on October 2, 2000. Taylor v. Missouri, 531
U.S. 901 (2000).
While the petition for writ of certiorari was pending,
petitioner filed another Rule 29.15 motion, which was
denied after an evidentiary hearing. Petitioner then
appealed the denial of the 29.15 motion, and the
Missouri Supreme Court affirmed the trial court on
January 27, 2004. Taylor v. State, 126 S.W.3d 755 (Mo.
2004).
(Doc. No. 54, pp. 2-3).
Petitioner filed a petition for writ of habeas corpus on March 5, 2005. Doc.
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No. 24. On January 8, 2007, this Court denied the petition. Doc. No. 54. This
Court denied petitioner a certificate of appealability. See Order, Doc. No. 73.
The Eighth Circuit granted a certificate of appealability as to petitioner’s Batson,
claim, and then affirmed this Court’s judgment. See Taylor v. Roper, 577 F.3d
848 (8th Cir. 2009). The Supreme Court denied discretionary review. Taylor v.
Roper, 130 S.Ct. 3464 (2010). On September 7, 2010, petitioner filed a motion to
recall the mandate. See Doc. No. 84, Ex. 1. On May 27, 2014, the Missouri Supreme
Court overruled the motion to recall the mandate. See Doc. No. 84, Ex. 2. Petitioner filed
his Supplemental Petition with this Court on June 26, 2014. Doc. No. 84.

II.

Second or Successive Application
28 U.S.C. § 2244(b) provides that a district court shall dismiss a claim presented in

a second or successive habeas corpus action under section 2254 that was either (1)
presented in a prior application; or (2) not presented in a prior application unless (a) the
claim relies on a new rule of constitutional law made retroactive to cases on collateral
review by the Supreme Court, or (b) the factual predicate for the claim could not have
been discovery previously through the exercise of due diligence, and the facts underlying
the claim would be sufficient to establish that no reasonable factfinder would have found
the applicant guilty of the underlying offense.

Additionally, before a second or

successive application is filed in the district court, the applicant is required to file a motion
before the Eighth Circuit for an order authorizing the district court to consider the
application. 28 U.S.C. § 2244(b)(3)(A).
Petitioner argues that this is not a “second or successive” application under
Section 2244(b), and can be filed directly with this Court instead of first seeking the
approval of the Eighth Circuit. Petitioner argues that he is not challenging his conviction
and sentence with this petition; instead, he is challenging the Missouri Supreme Court’s
recent decision denying petitioner’s motion to recall the mandate.
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The respondent argues that in the motion to recall the mandate, Taylor contended
that his sixth amendment rights were violated because he did not receive jury sentencing,
citing Ring v. Arizona, 536 U.S. 584 (2002) and State v. Whitfield, 107 S.W.3d 253 (Mo.
banc 2003). Doc. No. 84, Ex. 1, p. 3. As noted by defendant, this claim is very similar to
Penalty Phase Claim Nine in the original petition (Doc. No. 24, p. 59), wherein petitioner
claimed that the Missouri Supreme Court erroneously denied an August 26, 2003 motion
to recall the mandate in which he raised a claim under Ring and Whitfield. In the original
petition, however, petitioner asserted that his equal protection rights were violated by the
state court (Doc. No. 24, pp. 59-60), whereas in the present petition he contends that his
due process rights were violated by the state court (Doc. No. 84, p. 6). Respondent
argues that the Court should find either (1) that petitioner’s claim is successive under Rule
28 U.S.C. § 2244(b)(1) as the underlying legal theory has already been resolved against
petitioner by this Court, or (2) that if the theory is actually new, the claim should be
rejected under 28 U.S.C. § 2244(b)(2) as an issue that petitioner should have litigated in
the original litigation.
Petitioner replies that the Supreme Court found in Magwood v. Patterson, 561 U.S.
320 (2010), that where a claim arises out of events that occurred after the filing of the
petition, a pleading raising that claim is not second or successive under 28 U.S.C. § 2244.
The Court, however, believes that plaintiff is reading the holding of Magwood too broadly.
In Magwood, the petitioner had filed a second Section 2254 petition challenging a second
judgment imposing the death penalty after a prior habeas application in which the District
Court had vacated Magwood’s death sentence and conditionally granted a writ of habeas
corpus. See 561 U.S. at 326. The Supreme Court found that 28 U.S.C. § 2244(b) only
applied to second or successive applications challenging the same state-court judgment.
561 U.S. at 331-32. Here, the judgment challenged by petitioner is not a new judgment
imposing the death penalty that occurred after this Court’s ruling on the original Section
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2254 petition; instead, the judgment challenged by petitioner is the same death sentence
this Court considered in its 2007 Order. Although petitioner attempts to frame the issue as
a challenge to the Missouri Supreme Court’s May 27, 2014 order denying the motion to
recall the mandate, that order is not a new judgment. Given that the due process
challenge raised by petitioner in the motion to recall the mandate and the present
supplemental petition could have been raised in petitioner’s original Section 2254
petition, the Court finds that petitioner should have sought permission from the Eighth
Circuit prior to filing such a supplemental petition. Consequently, the Court DISMISSES
this action pursuant to 28 U.S.C. § 2244(b).
III.

Review of the Merits of Petitioner’s Claim
In the alternative, even if the Court found that this petition was not second or

successive and reached the merits of petitioner’s claim, the petition for writ of habeas
corpus would be denied.
Petitioner argues that under current Missouri law, a capital defendant has a right to
have a jury determine the facts which make him eligible for a sentence of death, and
where a jury has failed to find the facts necessary for a death sentence, that should
operate as an acquittal of the death penalty. See State v. Whitefield, 107 S.W.3d 253
(Mo. banc 2003); State ex rel. Baker v. Kendrick, 136 S.W.3d 491, 494 (Mo. banc 2004).
Petitioner notes that the state courts have denied petitioner’s motion to recall the
mandate, and argues that retroactive application of Ring is not only a right based on state
law, but is also a liberty interest protected by the Due Process Clause of the Fourteenth
Amendment. See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980). Petitioner argues that
even though the state of Missouri was not required to apply Ring retroactively under the
United States Constitution, once it did so the state court is not free to arbitrarily pick and
choose identically situated persons to whom its rules apply.
As noted by respondent, however, petitioner’s contention that he received
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disparate treatment is a false premise. The Court previously found as follows as to
penalty phase claim nine in the original petition:

Moreover, even if this Court were to consider this claim
on the merits, petitioner is not entitled to relief. Petitioner
is not in the same situation as the prisoners in State v.
Whitfield, 107 S.W.3d 252 (Mo. banc 2003); State v.
Thompson, 134 S.W.3d 32 (Mo. banc 2004); State ex rel.
Mayes v. Wiggins, 150 S.W.3d 290 (Mo. banc 2004);
State v. Buchanan, 115 S.W.3d 841 (Mo. 2003); and
State ex rel. Baker v. Kendrick, 136 S.W.3d 491 (Mo.
banc 2004). In those cases, judges had made the
findings of fact necessary to impose the death penalty.
Missouri has determined that, in such cases, petitioners
were entitled to have their death sentence commuted to
life imprisonment without parole. See id., applying Ring
v. Arizona, 536 U.S. 584 (2002). Petitioner’s case,
however, is in a significantly different posture. Although
at the first penalty phase petitioner was sentenced to
death after a judge found the facts necessary to support
the sentence, the findings at petitioner’s first penalty
phase were reversed, and the case was remanded for a
new penalty phase. The outcome of the second penalty
phase in 1999 was a determination by the jury that the
facts necessary to support the death sentence were
present. This determination was made by the jury long
before the decisions in Ring and Whitfield. Therefore, at the
time of those decisions, petitioner (unlike the prisoners in the
other cited cases) had been sentenced to death based on the
findings of a jury, in compliance with the standards set forth in
Ring and Whitfield. Petitioner received the process he was
due, and he has demonstrated no equal protection violation.
Petitioner’s point is denied.
Doc. No. 54, pp. 31-32. Respondent argues that the above rationale applies with equal
force to petitioner’s supplemental petition. The Court agrees, and finds that petition has
not demonstrated a due process violation, given that he had been sentenced to death
based on the factual determinations made by a jury prior to the decisions in Ring and
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Whitfield. Petitioner’s Supplemental Petition (Doc. No. 84) is DENIED.
No certificate of appealability will be issued.

In order for a certificate of

appealability to be issued, “the petitioner ‘must demonstrate that the issues are debatable
among jurists of reason; that a court could resolve the issues [in a different manner]; or
that the questions are adequate to deserve encouragement to proceed further.’” Randolf
v. Kemna, 276 F.3d 401, 403 n.1 (8th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880,
893 n.1 (1983))(alteration in original). Although this may be referred to as a “modest
standard,” id. (citing Charles v. Hickman, 228 F.3d 981, 982 n.1 (9th Cir. 2000)), petitioner
has failed to meet this burden.
Therefore, for all the foregoing reasons, petitioner’s Supplemental Petition (Doc.
No. 84) is DENIED.
IT IS SO ORDERED.

Date: September 12, 2014
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge

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