George C. Gilmore, Appellee, v. Bill Armontrout, Appellant.george C. Gilmore, Appellant, v. Bill Armontrout, Appellee, 867 F.2d 1179 (8th Cir. 1989)

The HONORABLE GERALD W. HEANEY assumed senior status on January 1, 1989

The panel holds that an "adequate and independent procedural bar" was erected because Gilmore did not raise his claim concerning the prosecuting attorney's closing argument in the appeal from the denial of his Rule 27.26 post-conviction motion. The panel holds the cause and prejudice analysis of Wainwright applicable to post-conviction appellate proceedings. I take issue with these determinations. I realize that the panel is bound by our prior ruling in Stokes v. Armontrout, 851 F.2d 1085 (8th Cir. 1988), cert. denied, --- U.S. ----, 109 S. Ct. 823, 102 L. Ed. 2d 812 (1989). However, there is no analysis submitted in Stokes which addressed extending the application of Wainwright and such application, in my view, is fundamentally unsound. This issue should be fully aired before the entire court en banc

The issue at hand arises where a claim of ineffective assistance of counsel was omitted in the post-conviction proceeding. The basis of the ineffective assistance claim itself arises by reason of original counsel not raising a constitutional claim at trial or on appeal. Suffice it to say the Supreme Court has upheld the applicability of the Wainwright bar for failure to raise a claim on direct appeal by a one vote margin. Smith v. Murray, 477 U.S. 527, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986). The Supreme Court has never, to date, applied Wainwright in a post-conviction context.

The reasons to apply a procedural bar for failing to raise a claim in a post-conviction hearing are much more attenuated than in a direct criminal proceeding. The same state interests are not applicable. First, the state need not even provide a post-conviction proceeding. Second, several of the states, including Missouri, allow only one post-conviction proceeding. Thus inadvertance or inexperience of appointed lawyers in state post-conviction proceedings may weigh heavily to prejudice a petitioner's constitutional rights. I have no disagreement with application of a waiver rule under narrow circumstances. See Wayne v. White, 735 F.2d 324, 325 (8th Cir. 1984) (federal habeas petitioner who deliberately by-passed raising a specific claim in initial post-conviction petition held procedurally barred). However, the deliberate by-pass rule requires a knowing waiver by the petitioner and, as Wainwright makes clear, such a rule is clearly distinguishable from a cause and prejudice test.

Analysis of the policies behind the contemporaneous objection rule and the need for adequate appellate review demonstrate that the successive petition rule under Rule 27.26 serves totally different purposes. I respectfully submit these concerns do not provide an adequate state interest to bar federal consideration of a constitutional claim. The basic concern of the state is to encourage post-conviction petitioners to consolidate all constitutional claims into one petition so as to avoid successive or repetitious petitions. As worthy as such a policy may be, such a concern falls far short of a state's interest in requiring an adequate trial or appellate record involving a direct challenge to a possible unconstitutional conviction.

Other considerations militate against using a procedural bar arising from an omission in a Rule 27.26 proceeding as an adequate state ground to bar federal court review. First, the state procedure is a civil proceeding. A state need not even provide such a procedure, and if it does, appointment of counsel is not constitutionally necessary. How unfair it would be to bar a pro se litigant from raising a federal constitutional claim in federal court because he did not set it forth in his first Rule 27.26 pleading.

Furthermore, it is in the interest of state administrative efficiency to have the same trial or appellate counsel represent a convicted defendant in his post-conviction hearings in both state and federal court. Retention of the same counsel provides many advantages. He or she is the most knowledgeable as to the trial record and can more adequately represent the petitioner throughout both state and federal proceedings. However, where there is a claim of ineffective assistance of counsel at trial to be asserted it would never be raised at the first Rule 27.26 proceeding if counsel were the same. Moreover, even if new counsel were appointed, as occurred here, the newly-appointed counsel could never be challenged as being ineffective in failing to raise the sixth amendment claim in the post-conviction proceeding because the latter is a civil proceeding to which the sixth amendment does not attach.

The most obvious means to satisfy "cause" under Wainwright is to show ineffective assistance of counsel. See Murray v. Carrier, 477 U.S. 478, 485-92, 106 S. Ct. 2639, 2644-48, 91 L. Ed. 2d 397 (1986). Yet the State boldly asserts that it is impossible for Gilmore to prove the requisite "cause" under Wainwright with a claim of ineffective assistance of Rule 27.26 trial or appellate counsel because such a claim cannot be an independent ground for habeas relief. In other words, according to the State, no "cause" can be asserted here due to failure of counsel to raise the constitutional claim in the Rule 27.26 proceeding because no sixth amendment right to counsel exists in the civil post-conviction proceeding. Surely this "catch-22" bar is not sufficiently worthy to preclude a federal court from entertaining a federal constitutional claim in a habeas corpus petition.

Finally, the panel fails to note that federal courts are instructed not to apply the cause and prejudice test where a miscarriage of justice is alleged that undermines the accuracy of the guilt determination or sentencing process. Smith v. Murray, 477 U.S. at 538-39, 106 S. Ct. at 2668-69. This is precisely the case here, yet the panel pays no heed to this concern.

In sum, the cause and prejudice test of Wainwright should not be extended to the failure to raise a claim in a state post-conviction proceeding. The very absence of Supreme Court cases on such an extension should demonstrate its infeasibility. A state procedural bar arising from an omission to state a claim in a post-conviction proceeding should not form an adequate state ground to bar federal consideration of a constitutional claim. The panel opinion fails to fully comprehend the cause and prejudice test of Wainwright by providing, without discussion, an unwarranted extension of it in an area where it is completely unworkable.

Although the panel opinion recognizes the limited scope of Ramos' holding, it goes on to note that the Ramos Court's "conclusion that the commutation instruction did not violate the federal Constitution is apropos and instructive in this [matter.]" The panel then notes, parenthetically, that it believes that neither Missouri statutes nor Missouri case law prohibits capital sentencing juries from considering the Governor's power to commute a sentence or the power of the state legislature to modify parole statutes. This "belief" is, in part, incorrect. It is true that the Missouri legislature does not prohibit capital sentencing juries from considering this information; it is not true that Missouri case law does not prohibit such consideration. The Supreme Court determined that the States are best left with the wisdom to decide whether to permit this activity, Ramos, 463 U.S. at 1014, 103 S. Ct. at 3460; the simple fact is that Missouri has repeatedly held " [r]eferences to clemency and legislative intervention in reducing sentences * * * to be improper." McDonald, 661 S.W.2d at 506; see also State v. Kaempfer, 342 Mo. 1007, 119 S.W.2d 294 (1938) (held improper for prosecutor in oral argument to call jury's attention to the possibility of defendant's release from imprisonment by parole or some similar procedure as a reason for imposing greater penalty to compensate for such prospective mitigation); State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524 (1947) (en banc) (held reversible error and inflammatory for prosecutor to argue concerning defendant's possible thinking that a new governor or penal board would pardon or parole him); State v. Cornett, 381 S.W.2d 878 (Mo.1964) (en banc) (held reversible error for trial court to inform the jury that sentence imposed by its verdict may be diminished by parole or some similar procedure not administered by the judicial branch of government); State v. Lewis, 443 S.W.2d 186 (Mo.1969) (held that rule of Cornett case applies with equal vigor to a prosecutor's argument); State v. Roberts, 709 S.W.2d 857 (Mo.) (en banc), cert. denied, 479 U.S. 946, 107 S. Ct. 427, 93 L. Ed. 2d 378 (1986) (held reversible error when prosecutor's comments, although technically correct statements of law, diminished the jury's sense of responsibility in violation of the eighth amendment). In fact, not only has the Supreme Court of Missouri held this type of activity to be improper for some 25 years, it felt strongly enough about the repeated attempts by prosecutors at circumventing its holdings to issue an explicit admonition: " [t]hus though the prosecutor made a technically correct statement of law, the possibility exists that it may be used in such a manner to alter a jury's sense of responsibility, and accordingly, prosecutors should hereafter avoid such argument." Roberts, 709 S.W.2d at 869 (emphasis added). See also State v. Driscoll, 711 S.W.2d 512, 518 (Mo.1986) (Blackmar, J., concurring) (noting court's prior admonition in Roberts) ; State v. Stutts, 723 S.W.2d 594, 596 (Mo.Ct.App.1987) (same). It was therefore clearly wrong for the panel to hold that Missouri case law would sanction the prosecutor's comments in the instant case

The Missouri Supreme Court states to the contrary. See State v. Cornett, 381 S.W.2d 878, 881 (Mo.1964) (en banc) ("The statement is not rendered harmless by reason of the further statement of the court to the effect that the jury must be guided by the instructions and let the future take care of itself.")