Bookwalter v. Steele

DALE D. BOOKWALTER, Petitioner, v. TROY STEELE, Respondent.

No. 4:17-CV-2333 SPM

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

April 13, 2018

MEMORANDUM AND ORDER

Petitioner commenced this case by filing a petition for writ of habeas corpus under 28 U.S.C. Sec. 2254. (Doc. 1). The matter is currently before the court on Petitioner's Motion for Release on Bail Pending Decision on Petitioner's Pending Amended Habeas Petition. (Doc. 22). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. Sec. 636(c). (Doc. 5).

After a jury trial in 2009, Petitioner was convicted of statutory sodomy in the first degree. See State v. Bookwalter, No. 08DU_CR01415-02 (35th Judicial Circuit). The trial court sentenced him to fifteen years in prison, and his direct appeal was denied. State v. Bookwalter, 326 S.W. 3d 530 (Mo. Ct. App. 2010). Over seven years ago, Petitioner filed a timely Rule 29.15 petition for post-conviction relief, which remains pending in state court. Bookwalter v. State, No. 11SD-CC00033 (35th Judicial Circuit). Due to this inordinate delay in his state post-conviction proceedings, the Court is allowing Petitioner to pursue his federal habeas petition even though his state remedies are not exhausted. (Doc. 7). Petitioner urges the Court to release him pending its decision in his habeas petition. He contends that he has asserted at least one ground for relief that clearly warrants habeas relief. He also asserts that his case is exceptional, due both to the fact that he has served almost ten years of his fifteen year sentence, and because of the inordinate and inexplicable delay in his state post-conviction proceedings. Accordingly, Petitioner alleges that he has met the exceedingly high standard for release on bail pending a habeas petition.

"In spite of the lack of specific statutory authorization, it is within the power of a District Court of the United States to enlarge a state prisoner on bond pending hearing and decision on his application for a writ of habeas corpus." Martin v. Solem, 801 F.2d 324, 329 (8th Cir. 1986) (quoting In re Wainwright, 518 F.2d 173, 174 (5th Cir. 1975) (per curiam) (citations omitted). To obtain release pending habeas review, the petitioner must overcome a "formidable barrier." Glynn v. Donnelly, 470 F.2d 95, 98 (1st Cir. 1972). Release on bail is not favored in federal habeas corpus proceedings because it "supplies the sought-after remedy before the merits of petitioner's application are determined." Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981). To qualify for release, the petitioner must show a substantial federal constitutional claim that "presents not merely a clear case on the law, but a clear, and readily evident, case on the facts." Martin, 801 F.2d at 329 (quoting Glynn, 470 F.2d at 98). There must also exist "some circumstance making the request exceptional and deserving of special treatment in the interests of justice." Martin, 801 F.2d at 329 (quoting Ostrer v. United States, 584 F. 2d 594, 599 (2d Cir. 1978). Habeas petitioners are rarely granted release on bail pending disposition. Martin, 801 F.2d at 329; see also United States v. Mett, 41 F.3d 1281, 1282 n.4 (9th Cir. 1994) (special circumstances included a serious deterioration of health whileincarcerated); Landano v. Rafferty, 970 F.2d 1230, 1238-39 (3d Cir. 1992) (bail warranted because advanced untreated diabetes was causing rapid progression to blindness, and prisoner was not granted liberty, but instead taken to hospital for emergency treatment); Johnston v. Marsh, 227 F.2d 528, 529 (3d Cir. 1955) (petitioner was gravely ill and was released for emergency hospital treatment). Courts have also recognized that release could be proper because of extraordinary delay in the processing of a petition. See e.g. Glynn, 470 F.2d at 98 (recognizing that while extraordinary delay could justify release, such relief was not warranted in that case). The high standard applicable to requests for release while the Court considers a petitioner's habeas petition "reflects the recognition that a preliminary grant of bail is an exceptional form of relief in a habeas corpus proceeding." Lucas v. Hodden, 790 F.2d 365, 367 (3d Cir. 1986).

Petitioner asserts that Ground Seven of his habeas petition represents "a substantial constitutional issue" on which he is likely to prevail. (Doc. 22 at 3). Ground Seven is a claim of ineffective assistance of appellate counsel that Petitioner argues presents a "clear case on the law and the facts." Id. at 4. Petitioner alleges that his appellate counsel was ineffective for failing to argue on appeal a claim of trial court error in submitting to the jury a statutory sodomy verdict director that did not specify which alleged act of anal sodomy petitioner committed, thus violating his right to a unanimous verdict. He alleges that his right to a unanimous jury was clear at the time of his trial, citing State v. Celis-Garcia, 344 S.W.3d 150, 155 (Mo. banc 2011). He also alleges that if this issue had been raised in his direct appeal, the appellate court would have found plain error and vacated his conviction for a new trial, citing State v. Carlton, 527 S.W.3d 865, 874 (Mo. Ct. App. 2017), in which the appellate court remanded for a new trial afterfinding that the verdict directors at trial did not insure juror unanimity as to the criminal conduct supporting defendant's convictions.

Petitioner also alleges that exceptional circumstances exist in his case, as he has already served almost ten years of his fifteen-year sentence. He argues that he must be released in order to prevent him from serving more prison time than necessary, because even if he is successful on one or more of his grounds for habeas relief, the State could appeal that ruling and request a stay of his release pending the outcome of its appeal. He also asserts that exceptional circumstances exist because his state post-conviction proceeding has been pending for over seven years in ...