Shafer v. Bowersox

329 F.3d 637

Robert A. SHAFER, Appellee/Cross-Appellant, v. Michael BOWERSOX, Superintendent, Potosi Correctional Center, Appellant/Cross-Appellee.

No. 01-3685.

No. 02-1361.

United States Court of Appeals, Eighth Circuit.

Submitted: September 9, 2002.

Filed: May 27, 2003.

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Michael J. Spillane, argued, Asst. Atty. Gen., Jefferson City, MO, for appellant.

Cheryl A. Pilate, argued, Kansas City, MO (Charles M. Rogers, and David A. Kelly, on the brief), for appellee.

Before HANSEN,¹ Chief Judge, LAY and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

After Robert Shafer waived his right to counsel and his right to a trial by jury for both guilt and punishment phases, he pled guilty to two counts of first degree murder and two counts of armed criminal action and requested imposition of the death penalty. At that same hearing, the Missouri trial judge accepted Shafer's waivers and pleas and imposed a death sentence.

Shafer sought post conviction relief in state court, and resentencing was ordered based on his sentencing phase waivers and the lack of a presentence report. Both sides appealed, and these appeals were consolidated with Shafer's direct appeal. The Missouri Supreme Court affirmed Shafer's convictions and reinstated his death sentence. See State v. Shafer, 969 S.W.2d 719 (Mo.1998).

Shafer then filed this petition for habeas relief under 28 U.S.C. § 2254. After examining all the circumstances related to Shafer's waivers of counsel, guilty pleas, and waiver of the right to introduce mitigating evidence, the district court² concluded that the Missouri Supreme Court had unreasonably applied clearly established federal law in ruling that his waivers and pleas had been knowing, voluntary and intelligent. See Shafer v. Bowersox, 168 F.Supp.2d 1055 (E.D.Mo.2001). It also concluded that the supreme court had unreasonably determined the facts in light of the evidence when it found that the trial court had considered mitigating evidence before imposing the death sentence.

Shafer was granted a conditional writ, to become permanent if the state were not to allow him to withdraw his guilty pleas and afford him an opportunity to proceed to trial. The district court rejected Shafer's other claims, concluding that the Missouri Supreme Court had not unreasonably applied, or acted contrary to, clearly established federal law when it refused to suppress his confession and rejected his claims that ex parte contacts between the trial judge and the prosecutor had denied him due process and that he had received ineffective assistance of counsel. Both sides appeal.

I.

Keith Dennis Young and Ford Jerry Parker were shot to death on April 29, 1990, and Shafer and his friend David Steinmeyer later confessed to the murders, although they gave multiple and conflicting accounts. At different times each implicated himself or the other as the sole shooter, but each also claimed to have shot one of the victims. On July 24, 1992, Shafer gave a confession that was later used as the factual basis for his guilty pleas.

In his confession Shafer told the police that he had lost his job on the morning of April 29, 1990 and asked Steinmeyer to "come over and get high." The two spent the afternoon drinking and smoking marijuana, and began to discuss a plan to assault and rob "some homosexuals." According to Shafer he took a .22 revolver and five shells from his sister's bedroom that evening, and the friends walked to an area called Blanchette's Landing where they planned to find victims.

After they saw Young and Parker embracing, they approached the pair and asked for a ride to a neighboring town. The four set out in Young's car, which was soon taken over by Shafer and Steinmeyer and driven to a remote location. Shafer confessed that when Young and Parker tried to run away, he shot them. Shafer and Steinmeyer took money and other belongings from the bodies of the victims, and later removed items from the car. The next day both Shafer and Steinmeyer admitted to several people, including a priest and their mothers, that they had killed Young and Parker, and their mothers convinced them to turn themselves in to the police.

On December 27, 1990, Shafer was charged by information with two counts of first degree murder and two counts of armed criminal action. A public defender was appointed to represent him, but for more than a year that attorney did not investigate or do any work on the case. Several other defense attorneys were appointed but did little, and some of them had to withdraw because of a conflict. Meanwhile, Shafer found life in the county jail intolerable and pressured his attorneys to obtain a transfer.

A motion to transfer Shafer to another facility was eventually filed, alleging that correctional officers had not protected him from repeated sexual assaults by a fellow inmate, had frequently physically abused him, and had harassed him verbally with threats, curses, and questions about his sexual orientation. Although the court found that some of these allegations were probably true, it denied the motion to transfer because it seemed that the jail had taken steps to fix the problems and Shafer had provoked many of the confrontations.

Assistant public defender Susan McGraugh began to represent Shafer in February 1992, but in April he moved to proceed pro se, saying that he wanted to plead guilty and be sentenced to death. The state moved for a hearing on Shafer's motion and urged the court to grant it. The court convened a hearing on April 27, 1992, and then continued it so that a psychological exam could be completed.

Before the next hearing and without communicating with his attorney, Shafer contacted a police officer involved in the investigation and offered to confess. The officer went to the jail on July 23, 1992, and Shafer told him that he "wanted to take full responsibility for the shootings." After this conversation, the officer contacted attorney McGraugh who told him not to interview Shafer unless she was present. The next day the officer received another letter from Shafer that he would "give whatever is necessary," and the officer decided to speak with Shafer without notifying McGraugh. On that day Shafer gave a written and videotaped confession after signing a Miranda waiver. Shafer stated in the taped interview that he had been advised by counsel not to speak with the police, but that he wished to disregard that advice.

On the basis of Shafer's confession, the state reached a plea agreement with codefendant David Steinmeyer in which he agreed to plead guilty to two counts of felony murder in return for a recommended prison sentence of twelve years and six months. The same trial judge presided over the prosecutions of both Shafer and Steinmeyer, and he accepted Steinmeyer's plea and sentenced him on October 21, 1992 to the term recommended in his plea agreement.

Three days after Shafer's confession, the court reconvened the hearing on his motion to discharge counsel. Shafer testified that he wished to proceed pro se and expressed frustration with what he perceived to be ineffective and inattentive counsel. He also stated that he was unsure whether he would "plead guilty to life without parole" because his purpose in seeking to waive counsel and plead guilty was to receive the death penalty. At the request of McGraugh, who was still counsel of record, the court took judicial notice of the fact that the state had not yet filed notice of any aggravating circumstances, which are required under Missouri law in order to impose the death penalty. The prosecutor asked Shafer whether he believed that his recent confession contained aggravating circumstances, and he said that he did.

Expert evidence regarding Shafer's mental state was also received. The court took judicial notice of the report of Dr. Terrance Kukor, the psychologist who had conducted Shafer's initial competency evaluation. Dr. Kukor had stated in his report that Shafer did not suffer from a mental disease or defect that rendered him incapable of understanding the proceedings against him. Testifying live at the motion hearing was Dr. Daniel Cuneo, a psychologist engaged by defense counsel to conduct the evaluation ordered by the court at the April 27 hearing. Dr. Cuneo testified that he had examined Shafer on May 21 and that Shafer suffered from nonspecified personality disorder, making him prone to impulsive decision making and severely impairing his ability to waive counsel and represent himself. Dr. Cuneo predicted "He's going to bounce from one day to the next to the next and when it's all over, he's going to come back and say, `I want a change,' and he won't have that option then." At the close of the hearing, Shafer requested another psychological evaluation, and one was ordered by the court.

Four days later on July 31, 1992, the state filed a notice to seek the death penalty and a notice of statutory aggravating circumstances. The latter notice charged that (1) each murder had occurred during the commission of another homicide, (2) the murders were committed for the purpose of receiving money or items of value from the victims, (3) they were committed during a robbery, (4) the victims were killed as a result of their status as witnesses or potential witnesses, and (5) the murders were committed to conceal a felony. Since Shafer's attorney was not a designated death penalty counsel, Herman Jimerson was appointed to replace her.

Dr. Richard Gowdy conducted the psychological evaluation ordered at the July 27 hearing, and he issued a report on September 15, 1992. Although Dr. Gowdy's report stated that he found Shafer competent to waive his right to counsel, he did not offer any opinion on the legally separate question of whether Shafer's mental condition impacted his ability to make knowing, voluntary, and intelligent waivers of his rights. Since Dr. Kukor also had not addressed this...