Tisius v. Jennings, Case No. 4:17-cv-00426-SRB

MICHAEL TISIUS, Petitioner, v. RICHARD JENNINGS, WARDEN,¹ Respondent.

Case No. 4:17-cv-00426-SRB

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

October 30, 2020

ORDER

Before the Court is Petitioner Michael Tisius's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in a Capital Case. Doc. 38. For the reasons explained below, Petitioner's Petition is DENIED.

I. Factual Background

Petitioner was convicted of two counts of first-degree murder pursuant to Mo. Rev. Stat. § 565.020 (2000), in the Circuit Court of Boone County, Missouri and was sentenced to death on both counts. The facts as summarized by the Missouri Supreme Court are:

In early June of 2000, [Petitioner] and Roy Vance were cellmates at the Randolph County Jail in Huntsville, Missouri. [Petitioner's] sentence lasted thirty days, and Vance told [Petitioner] he would be in jail some fifty years. As such, [Petitioner] and Vance discussed various schemes where [Petitioner] would return to jail to help Vance escape. In one of those plans, [Petitioner] was to return to the jail with a firearm, force the guards into a cell, and give the gun to Vance, who would then take charge and release all of the inmates.

The Randolph County Jail was a two-story brick building that had been converted from a house. The front door of the jail was kept locked, and the officers could remotely open the door when visitors rang a doorbell. Inside the front door was a small foyer, and to the right behind a counter was the dispatch area where the officers were stationed. A hall led from the dispatch area to the jail cells in the rear of the building.

[Petitioner] was released on June 13, 2000. Shortly after his release, [Petitioner] contacted Vance's girlfriend, Tracie Bulington, who said that she wanted to go through with the escape plan. Four days later, Bulington drove from Macon to Columbia with a woman named Heather Douglas to pick up [Petitioner] and drive him back to Macon; [Petitioner] and Bulington stayed at Douglas' home for four or five days. During the ride to Columbia, Douglas heard the two discuss various ways of breaking Vance out of jail, including the idea of locking the jailers in a cell. They told Douglas they were joking. Douglas testified that over the days to follow, she heard [Petitioner] and Bulington say that they were "on a mission," but they would not elaborate. [Petitioner] and Bulington also described taking cigarettes to Vance at the jail and of having gotten information from a "stupid deputy." At other times they would stop talking when Douglas entered the room. Douglas also testified that [Petitioner] and Bulington kept a stereo, clothing and camping gear in Bulington's car and that she also saw a pistol in Bulington's car.

Beginning June 17, 2000, and continuing over several days, [Petitioner] and Bulington visited the jail several times. At or around 1:30 a.m. or 2 a.m. one of those mornings, they were admitted in the front door and delivered a pack of cigarettes to an on-duty officer, requesting that it be given to Vance. A day or two later, [Petitioner] and Bulington returned to the jail with a pair of socks for Vance and asked questions about his upcoming court date.

Bulington testified that each delivery signified to Vance certain facts, such as that [Petitioner] had made it to town or that the jail break would not occur the night of the delivery. During some of those visits, [Petitioner] kept a .22 caliber pistol that Bulington had taken from her parents' home in the front of his pants. [Petitioner] had tried to acquire a bigger gun than the one Bulington took. On the night of one of their visits, one officer testified that the [Petitioner] and Bulington were acting "real funny," nervous and erratic, such that he wrote a police report about the visit.

[Petitioner] tested the gun by firing it outside of Bulington's car window while the two were driving on country roads on June 21, 2000. Later that evening, [Petitioner] and Bulington drove around listening to a song [by the group Bone Thugs-n-Harmony] as they prepared to get Vance out of jail.[²] [Petitioner] rewound the cassette and played the [] song over and over. [Petitioner] told Bulington "it was getting about time" and that "he was going to go in and just start shooting and that he had to do what he had to do." [Petitioner] also said he would go "in with a blaze of glory."

At 12:15 a.m. on June 22, [Petitioner] and Bulington returned to the Randolph County Jail, rang the doorbell and were admitted. [Petitioner] again carried the pistol in his pants. [Petitioner] and Bulington told the officers they were delivering cigarettes to Vance. The two officers present were Leon Egley and Jason Acton. [Petitioner] made small talk with one of the officers for about ten minutes, discussing what [Petitioner] was planning to do with his life and how [Petitioner] was doing. Bulington testified she was ready to leave but froze as she noticed [Petitioner] had the gun drawn beside his leg. [Petitioner] then raised his arm with the pistol drawn and, from a distance of two to four feet, shot Acton in the forehead above his left eye, killing him instantly. Egley began to approach [Petitioner] and about ten seconds after he killed Acton, [Petitioner] shot Egley one or more times from a distance of four or five feet, until Egley fell to the ground. Both officers were unarmed.

[Petitioner] then took some keys from the dispatch area and went to Vance's cell. [Petitioner] could not open the cell, so he returned to the dispatch area to search for more keys. While [Petitioner] was in the dispatch area, Egley grabbed Bulington's legs from where he was lying on the floor, and [Petitioner] shot him several more times at a distance of two or three feet. Egley suffered five gunshot wounds, three to the forehead, a graze wound to the right cheek and a wound to the upper right shoulder. Not long afterwards, police found Egley gasping for air and heard a gurgling sound; he was surrounded by a pool of blood. Egley died shortly afterwards.

[Petitioner] and Bulington fled in her automobile. [Petitioner] threw the keys from the dispatch area out of the car window on the way out of town. Bulington threw the pistol from the car window while crossing a bridge on Highway 36. After the two had passed through St. Joseph and crossed the Kansas state line, Bulington's car broke down. Later that day, the two were apprehended by the police, and the keys and gun were recovered. After having waived his Miranda rights, [Petitioner] gave oral and written confessions to the murders.

[Petitioner's] theory at trial was that he was guilty at most of second-degree murder because although he admits that he shot and killed the two officers, he argues that he did so without deliberation.

State v. Tisius, 92 S.W.3d 751, 757-59 (Mo. banc 2002).

II. Procedural Background

On December 10, 2002, Petitioner's first-degree murder convictions and death sentences were affirmed on direct appeal by the Missouri Supreme Court. Id. Certiorari was denied on June 9, 2003. Tisius v. Missouri, 539 U.S. 920 (2003). The Circuit Court of Boone County denied Petitioner's Rule 29.15 motion for post-conviction relief with respect to Petitioner's guilt phaseclaims and affirmed the two, first-degree murder convictions. Tisius v. State, Cause No. 03CV165704, pp. 3-4; Doc. 46-13, pp. 62-63. The Circuit Court, however, remanded the case for a new penalty phase. Id. Petitioner appealed the Circuit Court's affirmance of the two, first-degree murder convictions, and the Missouri Supreme Court affirmed. Tisius v. State, 183 S.W.3d 207, 218 (Mo. banc 2006).

At resentencing Petitioner was again sentenced to death. During the second, penalty-phase proceeding, the state relied on evidence of events that occurred after the original, penalty-phase proceeding to argue future dangerousness. The Missouri Supreme Court affirmed Petitioner's death sentences on direct appeal. State v. Tisius, 362 S.W.3d 398 (Mo. banc 2012). The Circuit Court denied Petitioner's Rule 29.15 motion for post-conviction relief, and the Missouri Supreme Court affirmed. Tisius v. State, 519 S.W.3d 413 (Mo. banc 2017). The Missouri Supreme Court summarized the jury's findings at the second, penalty-phase proceeding:

At the close of evidence, the state submitted three statutory aggravating circumstances with respect to each murder count: (1) that the murder was committed while [Petitioner] was engaged in the commission of another unlawful homicide; (2) that the murder involved depravity of the mind; and (3) that the murder was committed against a peace officer engaged in official duties. Trial counsel objected on double jeopardy grounds to the third aggravating circumstance being submitted with respect to the murder of Mr. Acton because the jury from the original penalty phase did not find that circumstance. Trial counsel's objection was overruled. The jury found all three aggravating circumstances with respect to the murder of Mr. Egley and only the first and the third aggravating circumstances with respect to the murder of Mr. Acton. The jury found no mitigating circumstances and recommended [Petitioner] be sentenced to death on each count. The trial court sentenced [Petitioner] in accordance with the jury's recommendation.

519 S.W.3d at 419-20.

III. Legal Standard

A. Antiterrorism and Effective Death Penalty Act

"The Antiterrorism and Effective Death Penalty Act of 1996 [("AEDPA")] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002) (citing Williams v. Taylor, 529 U.S. 362, 403-404 (2000)). "[H]abeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Harrington v. Richter, ...