Opinion
No. 97-1435.
March 27, 2001.
On Motion to Recall the Mandate, Vacate the Judgment, Remand and Rehear the Cause.
Before BOWMAN, HEANEY, and FAGG, Circuit Judges.
ORDER
A Missouri jury convicted Tomas G. Ervin of two counts of capital murder. The Missouri Supreme Court affirmed Ervin's convictions and sentences in a consolidated appeal, and the Supreme Court denied certiorari. See State v. Ervin, 835 S.W.2d 905 (Mo. 1992), cert. denied, 507 U.S. 954 (1993). Ervin then challenged his conviction in a federal habeas petition under 28 U.S.C. § 2254. We denied the habeas petition, and the Supreme Court denied certiorari. See Ervin v. Delo, 194 F.3d 908 (8th Cir. 1999), cert. denied, 120 S.Ct. 2731 (2000). With his execution set for March 28, 2001, Ervin has now filed a motion asking us to recall our mandate, vacate our judgment, and rehear and remand the cause.
Ervin asserts the district court did not conduct the inquiry required to decide his actual innocence as a gateway to federal review of defaulted claims, and should have certified the actual innocence issue for appeal. Ervin contends trial counsel's preparation and performance were constitutionally inadequate, and critical facts proving his innocence were not heard by the jury or entered in the record. Specifically, Ervin asserts the prosecution arranged for Hunter, Ervin's coperpetrator and the main State witness, to take a polygraph examination. Ervin contends the test results showed Hunter committed the murders and Ervin was not at the crime scene. According to Ervin, an associate in trial counsel's office learned of the polygraph results before trial from Hunter's attorney. Ervin does not assert a free-standing claim under Brady v. Maryland, 373 U.S. 83 (1963), but contends he should receive a hearing in the district court to present this actual innocence evidence within the State's control. Ervin raised the polygraph issue in support of an actual innocence gateway claim in his amended habeas petition. The district court rejected Ervin's actual innocence claim and did not certify the issue for appeal. See Ervin v. Bowersox, No. 93-0235-DV-W-6, 1996 WL 634204, at *14 (W.D.Mo. 1996).
We need not decide whether the actual innocence issue can or should be reconsidered in light of the polygraph because the district court also rejected the defaulted issues on the merits. See id. at *15 ("I do not believe that any of the points or subpoints . . . rise to the level of constitutional violations."). Thus, even if Ervin could prevail on the actual innocence issue in the district court, that would only entitle Ervin to consideration of the defaulted issues, which have already been rejected by the district court on the merits. A remand would be futile.
In our denial of Ervin's habeas petition, we held Ervin's right to effective assistance of trial counsel was not violated by counsel's failure to play a videotape of Hunter's guilty plea for the jury. See 194 F.3d at 913-14. On the videotape, Hunter contradicted his trial testimony and repeatedly said Ervin did not commit the murders.
We concluded that because the jury had already heard testimony that Hunter had exonerated Ervin several times — before a judge, his parole officer, and police officers — there was not a reasonable probability Ervin would have been acquitted if defense counsel had played the tape. See id. at 914. Ervin was likewise not prejudiced by trial counsel's failure to put polygraph-related testimony before the jury. Polygraph results are not admissible in Missouri. See State v. Hall, 955 S.W.2d 198, 207 (Mo. 1997).
Hunter's admissions to others after the test would be admissible, but they would merely be cumulative of other testimony. Also, because the polygraph results were inadmissible under state law, there is not a reasonable probability that the prosecution's disclosure of the polygraph would have changed the trial's result, and thus the prosecution's failure to inform trial counsel of the polygraph does not rise to the level of a Brady violation. See Wood v. Bartholomew, 516 U.S. 1, 5-8 (1995) (per curiam).
In addition, there is no Brady violation because trial counsel learned of the polygraph and Hunter's related admissions through other channels before Ervin's trial. See United States v. Zuazo, No. 00-1728, 2001 WL 219146, at *2 (8th Cir. Mar. 7, 2001).
Ervin next challenges our conclusion that his due process claim related to venireman Crane is procedurally barred. See 194 F.3d at 914-15. Because we fully considered this issue in our earlier opinion, we are precluded from reviewing the issue again in this motion to recall the mandate. See Walls v. Bowersox, 180 F.3d 986, 987 (8th Cir. 1999).
Last, Ervin argues the district court did not consider and decide all the claims presented in his amended habeas petition, and the district court's certification of appealable issues was correspondingly flawed. Having reviewed the record, we conclude the district court considered all of Ervin's claims and rejected them, even if some were decided summarily given Ervin's failure to winnow the issues. As for the failure to certify issues for appeal, Ervin should have raised the argument in his federal habeas appeal, but failed to do so. In any event, Ervin has not carried his burden to make a substantial showing of the denial of a constitutional right on the uncertified issues. See Ramsey v. Bowersox, 149 F.3d 749, 760 (8th Cir. 1998). Indeed, other than the actual innocence claim, which we have already rejected, Ervin does not specify which issues should have been certified, explain why the issues meet the standard meriting appeal, or point out how the district court made a mistake in concluding the issues do not warrant certification. See id.
We thus deny Ervin's motion to recall the mandate, to vacate the judgment, and to reverse and remand the case.
I would recall our mandate of October 18, 1999 and remand to the district court with directions to issue a writ of habeas corpus to Ervin and to release him unless he is granted a new trial by the state within a reasonable period of time. Meanwhile, I would stay Ervin's execution, now scheduled for March 28, 2001, until further order from the United States District Court for the Western District of Missouri.
The critical issue before this court and the federal district court has always been whether Ervin's trial counsel was ineffective because he failed to keep his commitment to the trial jury to present the videotape of Hunter's guilty plea, in which Hunter admitted that he committed the murders without Ervin's assistance. Judge Sachs wrote,
A review of the tape, both visually and in transcript, would, I believe, convince most experienced litigators that, on balance, it should have been shown as part of the defense case. Response Exhibit N is a transcript running to 120 pages, but only a limited group of statements are important to the defense. Hunter told the judge very early in the proceedings that he would not discuss Ervin. Tr. 15. Late in the proceedings he said the other person (being charged) is "the wrong one."
Tr. 89. He denied he had said he wanted to plead in order to clear Ervin. Tr. 94-5. He repeated that Ervin was not guilty, but that Hunter's wife wouldn't accept his statement. Tr. 95. Ervin "did nothing." Tr. 95. He had "no contact with these people." Tr. 95. Hunter said, I know he's innocent," referring to Ervin. Tr. 98. "Ervin didn't do it." Tr. 104. "He isn't it." Tr. 105. Although the jury was surely intensely aware of the change of stories, and the prior exoneration of Ervin by Hunter, both the tone and repetition of the denials would have been impressive. Ervin v. Bowersox, 1996 WL 634204 *9 (W.D.Mo. Oct. 30, 1996) at 8.
Now Ervin has buttressed his ineffective-assistance-of-counsel claim with Hunter's post-polygraph statements. The record reveals that the fact that Hunter had taken the polygraph test was not brought to our attention until now. It is clear that by requesting a polygraph test the prosecutor wanted Hunter's answers on record. The test confirmed that Hunter committed the murders, but it also indicated that Ervin did not participate in the crime. The prosecution did not reveal this information to trial counsel in a timely manner, and once trial counsel was aware of the polygraph test, he did not bring the issue before the district court.
At the time that I filed my original dissent I believed that defense counsel was incompetent for failing to introduce Hunter's videotaped testimony. That belief is strengthened by counsel's failure to present Hunter's post-polygraph statements at an earlier date. Although polygraph statements are not admissible evidence in Missouri, Hunter's statements made after the polygraph test, in which he suggested that Ervin was not present at the scene of the murders, are. This evidence would not have been redundant as the majority suggests. Rather, taken with Hunter's exoneration of Ervin before a judge, parole officer, and police officers, it is reasonable to assume that the outcome of the trial would have been different if Hunter's provocative videotaped and post-polygraph testimony had been presented to the jury.
The district court justified its denial of relief to Ervin on the grounds that, first, it was obligated to accept the state court's finding that the trial court's decision was a rational, tactical decision that could not be second guessed; and second, in any event, prejudice to Ervin was unlikely because of the strength of the government's case and the state's case against Ervin. In my view, the district court was clearly wrong with respect to the ineffective-assistance-of-counsel decision. The Missouri Supreme Court noted that the post-conviction court had "found that defense counsel could reasonably decide not to reprise the story of the Hodgeses' deaths to the jury as a matter of trial strategy," and concluded that the post-conviction court's finding was not clearly erroneous. State v. Ervin, 235 S.W.2d 905, 930 (Mo. 1992). The issue of ineffective assistance of counsel presents a mixed question of law and fact and requires an independent review by this court. Laws v. Armontrout, 863 F.2d 1377, 1381 (8th Cir. 1988) (en banc), cert. denied, 490 U.S. 1040 (1989). Factual findings of state courts, both trial and appellate, are presumed in accordance with 28 U.S.C. § 2254(d) (1988) to be correct. Sumner v. Mata, 449 U.S. 539, 547 (1981); see also Flieger v. Delo, 16 F.3d 878, 886 (8th Cir. 1994). We need not grant such deference to legal conclusions.
Under the circumstances outlined above, in my view this matter falls squarely within the purview of Calderon v. Thompson, 523 U.S. 538, 549 (1998), and that our mandate should be recalled so that justice can be rendered. Ervin's petition is neither successive nor abusive. I have no disagreement with the majority with regard to the issues that are defined by it as defaulted or the Crane issue. However, I believe strongly that the ineffective-assistance-of-counsel issue, in light of the new circumstances, is alive and well and the writ of habeas corpus should issue.