A.K.A.: "A. J."
Murder for hire
Number of victims: 1
Date of murder:
Date of arrest:
Date of birth: July
Victim profile: Darrell
Method of murder:
Location: Jasper County, Missouri, USA
by lethal injection in Missouri on October
Alan Bannister was on parole for rape in Illinois when he shot
Darrell Ruestman once in the heart on Aug. 21, 1982, at the front
door of Ruestman's trailer in Joplin, Missouri.
Ronald Rick Wooten, whose wife had run off with Ruestman, lived with
Bannister near Peoria, Illinois and hired him to commit the killing
Officers at trial testified that Bannister admitted that he was
hired to kill Ruestman in an unrecorded statement. Officers also
testified that Bannister directed them to a piece of paper with
Ruestman's name and address written on it.
Bannister did not testify at trial, but in post-trial statements
said the .22-caliber pistol went off accidentally after Ruestman
lunged at him. Bannister said he had gone to Ruestman's trailer to
confront him and talk to him about drug transactions. "I am guilty,
but only of second-degree murder. That crime is not punishable by
While on death row, Bannister was supported by an international anti-death
penalty following which has continued following his execution
through the International Bannister Foundation.
Missouri v. Alan Jeffrey Bannister
680 S.W.2d 141(Mo. Banc. 1984)
In August 1982, Alan Jeffrey Bannister lived near Peoria, Illinois,
with Ronald Rick Wooten. Wooten asked Bannister if he would like to
make some money by killing a man. When Bannister expressed interest,
Wooten explained that a man whose wife left him for another man
wanted to have the latter killed. According to the plan, Bannister
would receive $4000 to commit the murder, $1500 in advance and the
gun and transportation. Wooten subsequently gave Bannister a note,
upon which was written: "Darrell Ruestman, Shady Lane Mobile Home
Park, Joplin, Missouri." The plan thus completed, Bannister left by
bus for Joplin.
On August 20, 1982,
Darrell Ruestman was living in a Joplin trailer park with Linda
McCormick, then married to Richard McCormick. That afternoon
Bannister arrived in town, registered at a motel under a different
name. He paid in advance for two days, and then visited the trailer
park. He returned to the park on the following day, when he
befriended a resident, Glenn Miller. When Ruestman and McCormick
arrived at home that evening, McCormick observed Bannister and
Miller sitting in front of the Miller trailer, next to that occupied
by Ruestman and McCormick. Later in the evening, McCormick again
observed the two men in the vicinity of the trailer she shared with
Ruestman. McCormick retired, and awoke at approximately 10:00 p.m.
to the sound of knocking at the trailer door. When Ruestman answered
the door, he was shot, and died before the police arrived.
3:30 a.m. the next morning, Bannister took a taxicab to the bus
station, where he was arrested by Joplin and Newton County police
officers for the murder of Darrell Ruestman. Bannister was placed in
a lineup and was positively identified by McCormack and two other
witnesses as the man seen near the Ruestman trailer shortly before
the murder. In subsequent statements to the police, Bannister
revealed various details of the crimes and led officers to certain
physical evidence, including the murder weapon and the torn-up note
with the victimís name on it.
Capital Punishment in Missouri
In August 1982, Alan Jeffrey Bannister lived near
Peoria, Illinois, with Ronald Rick Wooten. Wooten asked Bannister if
he would like to make some money by killing a man. When Bannister
expressed interest, Wooten explained that a man whose wife left him
for another man wanted to have the latter killed.
According to the
plan, Bannister would receive $4000 to commit the murder, $1500 in
advance and the gun and transportation. Wooten subsequently gave
Bannister a note, upon which was written: "Darrell Ruestman, Shady
Lane Mobile Home Park, Joplin, Missouri." The plan thus completed,
Bannister left by bus for Joplin.
On August 20, 1982, Darrell Ruestman was living
in a Joplin trailer park with Linda McCormick, then married to
Richard McCormick. That afternoon Bannister arrived in town,
registered at a motel under a different name. He paid in advance for
two days, and then visited the trailer park.
He returned to the park
on the following day, when he befriended a resident, Glenn Miller.
When Ruestman and McCormick arrived at home that evening, McCormick
observed Bannister and Miller sitting in front of the Miller
trailer, next to that occupied by Ruestman and McCormick.
Later in the evening, McCormick again observed
the two men in the vicinity of the trailer she shared with Ruestman.
McCormick retired, and awoke at approximately 10:00 p.m. to the
sound of knocking at the trailer door. When Ruestman answered the
door, he was shot, and died before the police arrived.
At approximately 3:30 a.m. the next morning,
Bannister took a taxicab to the bus station, where he was arrested
by Joplin and Newton County police officers for the murder of
Darrell Ruestman. Bannister was placed in a lineup and was
positively identified by McCormack and two other witnesses as the
man seen near the Ruestman trailer shortly before the murder. In
subsequent statements to the police, Bannister revealed various
details of the crimes and led officers to certain physical evidence,
including the murder weapon and the torn-up note with the victimís
name on it.
08/12 - Alan Bannister shoots and kills Darrell Ruestman in Joplin,
Missouri (Newton County)
09/14 - Bannister is charged by information with capital murder.
02/03 - Bannister is tried in the Circuit Court of McDonald County
on a change of venue from Newton County.
02/03 - The jury finds him guilty of capital murder and recommends
capital punishment as the sentence.
03/10 - A motion for a new trial is denied and Bannister is
sentenced to death.
03/15 - A notice of appeal is filed.
11/20 - The Missouri Supreme Court affirms Bannisterís conviction
04/01 - The U.S. Supreme Court denies certiorari review.
07/12 - Bannister files Rule 27.26 motion for post-conviction relief
in Circuit Court.
12/17 - The Circuit Court denies post-conviction relief.
07/26 - Missouri Court of Appeals for Southern District affirms
denial of relief.
07/26 - Bannister files petition for habeas corpus in U.S. District
Court for the Western District of Missouri.
07/19 - Petition is dismissed without prejudice.
02/02 - Bannister files second post-conviction relief motion in
04/12 - Second post-conviction motion is denied by Circuit Court.
04/13 - A notice of appeal is filed.
09/01 - Missouri Supreme Court affirms the denial of relief.
10/28 - U.S. District Court reopens the habeas litigation.
08/23 - U.S. District Court denies petition for writ of habeas
04/30 - U.S. District Court denies the Motion to Reconsider.
05/29 - Bannister appeals denial of habeas relief.
09/24 - The U.S. Court of Appeals for the Eighth Circuit affirms the
denial of relief.
10/31 - The U.S. Supreme Court declines review.
11/01 - The State requests the Missouri Supreme Court to set an
11/15 - The Missouri Supreme Court sets December 7, 1994, as
Bannisterís execution date.
11/29 - Bannister files a petition for writ of habeas corpus in
11/30 - The U.S. District Court issues a stay of execution on
Bannisterís 1987 petition of habeas corpus.
12/2 - The U.S. District Court vacates its November 29 stay of
01/27 - The U.S. Eighth Circuit Court of Appeals remands the case to
the District court.
09/15 - The U.S. District Court denies relief.
11/14 - The U.S. Eighth Circuit Court of Appeals affirms the denial
06/27 - The U.S. Supreme Court denies review of the case.
09/24 - The Missouri Supreme Court sets an execution date of October
Organizers Meet with Bannister Family
By Karen Moewe.
Little did the family of Alan Bannister know as
they grieved the loss of their son and brother that so many people
around the world shared in their sorrow. Native Chillicothean Alan
Bannister was executed by lethal injection by the State of Missouri
Oct. 22, 1998. He had been on that state's death row for 15 years.
He had spent most of that time battling to get a new trial. His
court appointed attorney had presented only one hour of defense on
his behalf and didn't allow him to testify. All of his requests for
a new trial were denied by procedural bars. His side of the story
was never heard in a court of law.
The Bannisters knew Alan corresponded with
literally thousands of people but one in particular would take his
case and make it an international cause. Pam Rodger of Scotland
began writing to Alan Bannister after reading the book Execution
Protocol. Written by filmmaker Stephen Trombley the book and mention
of Alan Bannister got Rodger's attention.
According to Alan's sister
Adele, Pam Rodger didn't like the way to book ended. She didn't
think the author would write to her so she did the wrote to Alan
Bannister because his address was listed in the back of the book.
Much to her surprise, Alan did write back. They began corresponding
regularly and an almost immediate friendship was struck. "We were
both pro capital punishment at one time," Pam Rodger said of she and
her husband's opinion of the subject. "Alan taught us an awful lot
about corruption of the system. It's not the justice system it's the
injustice system," Pam Rodger said. Pam and Tom Rodger spent last
week with the Bannister family in Speer.
Pam Rodger was the first person to talk with Alan
Bannister after he learned Missouri Governor Mel Carnahan wouldn't
commute his sentence. She said that Alan had tried to comfort her in
the telephone call. He asked her to think of him every now and then
and try to carry on where he had left off. The night of the
execution Pam and Tom waited to
hear anything about the execution.
When they learned that he had been executed Pam was deeply saddened
by the death of her friend, Tom became very angry about what the
system had allowed to happen. The two fueled their efforts in to the
International Bannister Foundation.
They waited six months after the
execution to contact the Bannister family and ask permission to use
Alan's name. "We wanted to allow the family time to grieve," Tom
Rodger explained. Alan's mother, Alice and sister, Adele, made the
trip last year to Scotland to visit the couple and see first had the
work that they had done. This year the Rodgers came to the United
States to visit several of the inmates that they refer to as "Our
The Rodgers regularly correspond with 20 men on
death row. Their foundation has reached several countries. Their
internet site, claims, "We are not what the media term as "do-gooders",
we are not seeking the guilty parties to be let out of prison to
walk on our streets again, but to incarcerate them for a term of
imprisonment suitable for the crime they have committed without the
barbaric method of the death penalty hanging over them."
Bannisters thanked the Rodgers, Saturday as the family gathered at
their Alice and Bob's home. Adele Bannister presented Pam and Tom
Rodger with bracelets with International Bannister Foundation on the
front and "Thanks for your efforts and dedication" on the back. For
more information about the International Bannister Foundation, and
their goals and objectives visit their web site at: www.ibf.brum.net/enter.htm.
I attended the protest of the execution of Alan
Bannister about two weeks ago. Here is the news report of the death
in case you missed it:
Alan J. Bannister, a small-time hit man who
attracted little notice until a British filmmaker made him an
international cause, was executed today at the Potosi Correctional
Center. Bannister, 39, was pronounced dead at 12:05 a.m. Tim Kniest,
a corrections spokesman, read a statement from Bannister: "The state
of Missouri is committing as premeditated a murder as possible, far
more heinous than my crime."
Bannister was condemned in 1983 for shooting a
man outside a mobile home in Joplin, Mo. He had been on death row
longer than any of the 88 condemned inmates in two Missouri prisons.
He was the sixth person to be executed in Missouri this year. On
Tuesday afternoon, Gov. Mel Carnahan rejected Bannister's bid for
clemency, saying, "It is my firm belief that Alan J. Bannister is
guilty of first-degree murder."
Tuesday night, about a dozen protesters gathered
outside the Governor's Mansion in Jefferson City, unsuccessfully
urging Carnahan to spare Bannister. Earlier in the day, the U.S.
Supreme Court, without dissent or comment, denied Bannister's
request for an emergency stay of execution.
Bannister spoke to reporters by telephone,
ordered a ribeye steak and baked potato for his last meal and
visited with his wife, Lindsay, an Englishwoman who married him
after she saw him portrayed on a television documentary in 1992.
Until filmmaker Stephen Trombley of London
profiled Bannister in a film called "Execution Protocol,"
Bannister's appeals drew scant attention. But the film, and a sequel
Trombley made about Bannister's life, inspired protests by opponents
of capital punishment from Great Britain to Australia. Among the
Americans who sought clemency were actors Ed Asner and Sean Penn and
singer Harry Belafonte. Asner went to Jefferson City on Monday to
plead the case, but Carnahan wouldn't meet with him.
Veteran opponents of capital punishment in
Missouri held vigils Tuesday in St. Louis, Kansas City and outside
the prison, which is 60 miles south of St. Louis. Tuesday night,
about 60 protesters - some of them Bannister's relatives - stood
vigil outside the prison fence. Lindsay Bannister spoke briefly to
reporters. "I am going to be a widow in a few hours," she said.
Pointing to the prison, she said: "That is the most hideous, cruel
and barbaric system behind those walls. When I was with him, I was
not allowed to touch him, I was not allowed to kiss him." "Tonight,
we will have a new set of victims," she said. "I don't think that
anyone in Missouri is safer with my husband being executed."
Bannister spent part of Tuesday planning his funeral with the Rev.
Bob Bannister of Sparland, Ill., Alan Bannister's
father, was there with three of the condemned man's brothers and
sisters and eight nieces and nephews. ". . . This is a night we've
been expecting for a long time," he said.
Alan Bannister was on parole for rape in Illinois
when he shot Darrell Ruestman once in the heart on Aug. 21, 1982, at
the front door of Ruestman's trailer in Joplin. Investigators said a
man from Peoria, Ill., whose wife had run off with Ruestman, hired
Bannister to commit the killing for $4,000. Bannister grew up in
Chillicothe, Ill., just north of Peoria. He said the .22-caliber
pistol went off accidentally after Ruestman lunged at him.
said he had gone to Ruestman's trailer to confront him about a drug
deal. "I am guilty," Bannister said repeatedly, but only of second-degree
murder. That crime is not punishable by death. Bannister said his
original lawyer spoke with him only for an hour before the trial and
presented no evidence on his behalf. But Joe Abromovitz, who was
Newton County sheriff in 1982, said Bannister admitted that he had
been hired as a hit man and led deputies to a torn piece of paper
with Ruestman's address written on it. "Bannister did the hit,"
Lindsay Bannister, who married Alan Bannister in
1993, has lived since then in Park Hills, about 20 miles east of
Potosi, and helped direct the effort to save her husband. Lindsay
Bannister said she was moved to write to Bannister when she watched
Trombley's "Execution Protocol" in Cheltenham, England. His second
documentary was called, "Raising Hell: The Life of A.J. Bannister."
Trombley, 43, planned to be among the witnesses to the execution. He
said he met Bannister through the man's defense lawyers in 1991 and
"became intrigued by the facts of his story."
Some of Ruestman's relatives were at the prison
Tuesday. Rodney Ruestman, coroner of Woodford County, Ill., and a
brother of the victim, said, "Alan Bannister has victimized my
family along with many other families in his horrendous life of
crime." On Dec. 6, 1994, Bannister came within two hours and 20
minutes of being executed. That time, the U.S. Supreme Court voted
6-3 to stay the execution. But after that, the courts rejected
Friends for Life: A. J.
THE SHAME OF MISSOURI
(The Execution of AJ
There can be few Friends for Life Members who do
not now know of the tragic death of our patron, Alan Jeffrey
Bannister, who was executed by the State of Missouri on 22nd October
this year. Governor Mel Carnahan refused to grant Alan clemency,
despite the existence of considerable evidence supporting his
assertion that his only crime was one of accidental killing -
manslaughter or second degree murder at the most.
Furthermore, one of the original investigating
officers wrote the governor a letter stating - amongst other grave
concerns regarding the severity of Alan's sentence - that the
investigation team were unable to come up with any proof supporting
the prosecution's assertion that this was a contract killing [the
aggravating factor which allowed them to call for execution].
given the usual political considerations which almost always
influence clemency decisions, Carnahan had plenty of opportunity to
spare Alan's life - the defense team were simply asking that the
sentence be commuted to second degree life, so he could not claim
that clemency would "endanger" the citizens of Missouri.
Carnahan was not even running for the next term of office. An appeal
for clemency was made in person to the Governor's office on 20th
October. Amongst those present were Alan's mother, his wife, Lindsay
and American celebrity and supporter, Ed Asner. Governor Carnahan
was not present to hear this plea, appointing in his stead a
representative of the governor's office.
The case was in the media spotlight as prominent
US celebrities including Sean Penn, Gregory Peck and Harry Belafonte
expressed support for Alan. As stated in one news bulletin - "Supporters
had set up Web sites on the Internet about his case and flooded
state officials with letters, faxes and e-mails from around the
world. The State Attorney General's office said letters continued to
pour in Tuesday and that no other capital punishment case in the
state had received so much attention". It seems the Governor simply
wanted to see the execution go ahead, despite world-wide opposition
- even that of prominent US citizens and eminent US politicians and
In his final words, Alan thanked all those who
had supported him and strongly condemned the state for committing
"as premeditated a murder as possible, far more heinous and
deliberate than my crime.'' We must not allow Alan to be forgotten.
In closing, for the benefit of all those who
cared about Alan we would like to quote from a couple of the letters
he wrote as general addresses to his supporters.
"...I want to thank all of you for everything
you've done. If the worst takes place, please do not second guess
yourselves or abandon the fight against capital punishment....
....This world can become a better place, it
already is, because of each of you, so please, do not give up hope.
If my sentence is carried out, redouble your efforts to abolish
capital punishment and fight all the other social ills which
diminish us all as the human race." Nov. 1995.
"No matter what happens, we all did our best, and
I know myself to be the luckiest man on this earth, to have been
blessed with your friendship. Thank you, one and all". - Nov '96
They think that they can brush Alan Jeffrey
Bannister under the carpet - but they can't. We cannot let Governor
Carnahan, the State of Missouri or the US Federal government forget
the events of 22nd October 1997 - and we must combine with the
countless other groups which have independently come to the same
conclusion. It is perhaps the most fitting tribute we as
abolitionists can pay Alan, that his name become a cornerstone in
the fight to destroy the corrupt and oppressive system which tried
and failed to erase his name from the reckoning of the world.
have recently been very kindly told of the respect that Alan felt
for Friends For Life. We therefore feel it appropriate to pay or own
respects to him by retaining the honour of his patronage in memoriam.
Our heartfelt sympathies go out to all of Alan's family and friends
at this time of great loss.
PLEASE CONTINUE TO WRITE TO The Honorable Mel
Carnahan, Governor of Missouri, Room 216 State Capitol, 206 West
High Street, Jefferson City Missouri 65101, USA. Please also write
to President Bill Clinton and The US Embassy in your country.
In 1982 Alan J. Bannister and Darrell Ruestman of
Illinois were involved in a tragic accident that resulted in the
death of Mr. Ruestman and the incarceration and near execution of Mr.
Bannister. Alan now faces the danger of another execution date. The
catalyst for this sequence of events was a drug dealer by the name
of Ronald Wooten. What follows is their story, particularly that of
A.J. Bannister, and is an attempt to raise awareness of the imminent
possibility of that most extreme of miscarriages of justice, a
Alan Bannister has never denied killing Darrell
Ruestman. He does, however, fervently deny having ever had any
intention to do so.
In June of 1982 Alan Bannister was young,
impetuous and unemployed. He was approached by Ronald Wooten with
the offer of a cut in the profits of a cocaine deal if he consented
to selling a quantity on the streets. Alan was intelligent but
impressionable and was lured by the money this offer promised.
a week of working for Wooten, in his own words, Alan "....began to
feel uncomfortable about doing this sort of thing, amongst other
factors the fear of arrest for sales made me very uneasy". Alan had
the opportunity to relocate to Arizona, an opportunity he took. He
was still in possession of 21 grammes of Mr. Wooten's cocaine which
he tried to return.
He was unable to find the dealer and so left it
with a mutual acquaintance. This acquaintance did not return the
drugs immediately and Mr. Wooten (who had a notorious reputation for
violence) assumed Alan had absconded with them.
On July 9th Alan was
stabbed 5 times in the back and left for dead in Phoenix, Arizona
"...my attackers making certain that I knew why". Alan left hospital
seven days later angry, bitter and confused. "I'd nearly lost my
life over something I hadn't done. One positive thing came out of
that assault, I became adamantly opposed to drugs of any description".
Alan returned to Illinois, In August 1982 he was
attacked again; this time shot. He decided to confront Wooten. The
dealer told him that he had received the missing drugs but it had
been his supplier, who he named as Darrell Ruestman, who had ordered
the stabbing. Wooten said Ruestman had fled from Illinois when he
heard that Alan had survived. Alan decided to confront Darrell
Ruestman. Wooten gave him Darrell Ruestman's address and a gun,
warning that Ruestman "...always carries a gun and will shoot you on
Alan freely admits "... my state of mind was not
good at that time, I was wanting to cause him [Mr. Ruestman] to feel
some of the pain I had felt. I initially considered shooting him in
the knee but thought about an episode of "Magnum P.I.", in which a
man was shot in the leg and bled to death, so I decided I couldn't
do that. Next I thought of assaulting him with a club but could not
find one. So I came up with the idea that I'd speak to him, point
out what had happened with the drugs, and inform him that his so-called
partner (Wooten) had given me his address".
Through doing this Alan
hoped to transfer the onus of the conflict where it belonged,
between Wooten and Ruestman, thereby leaving himself free. We now
reach the point at which the accident occurred. When Mr. Ruestman
answered his door he grabbed Alan who panicked and reached back to
grab his gun, barrel down, with his left hand (Alan is right handed)
to swing at Mr. Ruestman's chin. Darrell Ruestman blocked the blow
with his arm and the gun discharged. The bullet entered Mr.
Ruestman's body at a downwards angle of 60 degrees.
Alan was arrested and accused of carrying out an
intentional contract murder. He was offered a plea bargain of life
plus 50 years. "I refused this and exercised my constitutional right
to a trial, I did this from the very start. I had been forthright
about my guilt and the plea bargain offered was excessive to my
degree of guilt".
The trial of Alan Jeffrey Bannister lasted 4 days,
during which he received virtually NO defense representation. Alan
was fighting the system from the start. In the States, the higher
officials in the judicial system are elected. With an 80% majority
of the public in favour of capital punishment, it is politically
advantageous for as many death sentences to be handed down as
Because he was too poor to afford his own lawyer,
the defense counsel he received was court appointed. Alan has stated
"During the five months I was incarcerated prior to trial, the only
time I ever saw my attorney was at the pre-trial motions. He made no
effort to put up any sort of meaningful defense. Because of this,
precious little truth was present at my trial".
At the trial, the
authorities claimed Alan had made incriminating statements; yet the
statements that they testified to were not ones Alan had made. They
made no explanation for the fact that they had take no written or
taped confession. In short, fabricated statements were attributed to
Alan in order to obtain his conviction.
The jury were not told of
the savage assaults he had been subjected to just weeks before the
crime. Alan states "This evidence was readily available to my
defense counsel but he neither investigated nor secured it".
In addition, a couple of the state's witnesses
perjured themselves, claiming they would not have "known" it was a
contract killing if Alan had not told them himself. Alan is emphatic
on this point; "....they were telling outright lies. To start with,
I said no such thing, but of far greater importance, I am in
possession of the notes taken at the scene by Deputy Matthews. They
clearly state that the victim's brother told the Joplin authorities
that he thought it was a contract murder. He told them this a full
six hours before I was arrested. I informed my public defender of
this, he did not pursue it".
At the trial the state portrayed Alan
and Wooten as close friends. This was not the case; many people of
Illinois, who would have testified to this effect contacted the
public defender - "he didn't even bother to return their calls."
Other inconsistencies in the trial are also worth
mentioning. A Sheriff, Mr. Abromovitz, in an inflammatory statement
to the jury, testified that Alan had told of waiting at a specific
point of a specific road "to watch the meatwagon [i.e. ambulance] go
by". As Alan has stated - "This is wholly false; another of the
state's witnesses positively identified me as being 26 blocks away [from
the ambulance] at virtually the same time".
In an attempt to explain
the bizarre angle of the wound, the prosecution misled the jury by
telling them that Alan was ambidextrous. This is completely false;
Alan is strictly right handed. Perhaps the worst of the
prosecution's knowingly misleading claims was that Alan had "probably
killed a second man that night"; but this man was actually listed as
a potential witness and, of course, was very much alive, and as far
as Friends For Life are aware, is still so today.
Alan attempted to give a written statement. The
authorities refused to accept this. As he says, "They had portrayed
me as a cold blooded 'contract killer', yet they had no explanation
why, if this was the case, the victim was not shot a second or third
time with complete accuracy". After a misleading, fabricated,
prosecution with virtually no defense representation, Alan was found
guilty of capital murder on February 3rd 1983 and formally sentenced
to death on March 10th.
1983 to 1997
Alan J. Bannister is no longer the impetuous,
impressionable youth of 12 years ago who found himself on the wrong
side of the tracks and involved in the tragic death of Darrell
Ruestman. Since the accident occurred, he has been deeply remorseful
for his part in it. "I have my dues to pay. I have never denied my
part in all of this, nor have I ever claimed to be innocent. I am
responsible for the loss of Darrell Ruestman's life but I did not
intentionally kill him. Living these past 12 years with nightmares
of that night so long ago, there is no sadder or sicker feeling than
knowing that I have taken a life. But the sentence of death which I
was given is vastly excessive to the crime I committed".
The Alan J. Bannister of 1997 is a sober,
reflective man of responsibility, intelligence and integrity -
evidence of which is rife in his every day words and deeds. To
execute him would be to waste a human life that has much to offer
and benefit society.
During Alan's 12 plus years on death row he has
been the subject of two films regarding capital punishment. In both
of these he has been vehemently and vocally critical of the U.S.
judicial system. The authorities do not like this. After his
appearance in "The Execution Protocol" he was locked up in solitary
confinement. This did not scare him away from speaking out in the
recent BBC Fine Cut film, "Raising Hell".
In December of 1994 Alan came to within 2 hours
of execution. The film "Raising Hell" highlighted Alan's story, the
inconsistencies in his trial, and filmed (with their full permission)
his wife and his mother as they maintained vigil outside the prison
walls in those last few hours. This final sequence of the film was
deeply disturbing and brought into sharp relief the mental torture
that capital punishment inflicts not only upon the condemned but
also, at the very least in equal measure, upon the condemned's loved
The scenes depicting this tense vigil were, quite literally,
unbearable. The sense of relief and jubilation as the viewer learnt
that Alan had received a stay of execution was overpowering. Friends
For Life urge anyone who is unsure or in favour of capital
punishment to view "Raising Hell". As a result of the publicity
surrounding Alan's case, the state of Missouri was forced to
acknowledge that there were still discrepancies in the prosecution's
"case". He was therefore granted a stay.
In September of 1995, his plea for an evidentiary
hearing was turned down by a Missouri Western District judge, Judge
D. Brook Bartlett; the same judge who vacated (i.e revoked) one of
Alan's stays in December of 1994. The evidentiary hearing was
refused on the grounds that the judge did not believe the evidence
would be credible; begging the question - How could a decision on
the credibility of evidence be made without a full and thorough
examination in a court of law ?
It is interesting to note that this
same judge granted an 11 day evidentiary hearing to a former
Attourney General of Missouri, William Webster, who had pleaded
guilty to a charge of embezzlement fraud involving hundreds of
thousands of dollars. The purpose of this hearing was to decide
whether to sentence the former Attourney General to 18 or 24 months
Alan now faces the possibility of yet another
execution date and stands to lose his life over a 1st degree murder
that he vehemently denies, and when there is substantial unheard
evidence to back up his claims. Yet still he has been refused an
evidentiary hearing, despite an indefinite stay granted as the
result of Oral Arguments which took place on 15th November 1995.
We shall leave the final words of this account to
Alan himself: "I'm feeling a bit punch drunk right now, having been
taken to the brink a mere 9 months ago and seeing what it did to [my
wife] and my mother. I don't want to put them through that again,
but that's out of my control it seems." -A.J.B, Sept. 1995 [upon
receiving the news of an earlier possible execution date].
A letter from Marshall J. Matthews, investigating
officer in the Bannister case, to Governor Mel Carnahan. (October 1,
Dear Mr. Governor,
At about 10:20 P.M. Saturday August 21, 1982 I
was dispatched to the Shady Lane Mobile Home Park at 4720 South
Rangeline in Joplin, Newton County Missouri, to investigate the
report of a shooting. Upon my arrival at lot #6, I found the body of
Darrell Ruestman; he may have died a minute before I got there, or
when I was checking his body for signs of life. As the investigating
officer my thoughts at that time were not of killing whoever did
this, but to capture that person or persons without myself or anyone
else getting hurt. Seven hours later, I handcuffed Alan Bannister at
the Continental Trailways Bus Station in Joplin and advised him he
was under arrest for investigation of murder.
What happened after that to Bannister is well
known throughout the State of Missouri and to yourself Mr. Governor:
He was tried, convicted, sentenced to death, lost each of his
appeals and was nearly executed on one occasion. And now as I write
this letter to you, he awaits his execution date of October 22,
The road I chose to follow led me away from the
Newton County Sheriff's Department in 1985 to continued public
service in the areas of Defense Aerospace Security, again to local
law enforcement, and for the last four years, in Social Work. I
direct a probation / social rehab program for the Domestic Division
of the 18th Judicial District in Wichita, Kansas. I never left law
enforcement completely, and still serve on the Sheriff's Department
in my community in a part time capacity. I also remain a supporter
of capital punishment, in instances that I feel it is justified.
Mr. Governor, I'm writing this letter to you
trusting that as a man of reason, conscience and wisdom, you will
spare the life of Alan Bannister. I pray that you consider with
objectivity, my convictions concerning this grave issue. I am aware
that my appeal to you goes against the position of many people in
the Missouri law enforcement community including those I've served
with. I am aware that the perception of some of those people is that
I am betraying their efforts (in which I played a direct role). I am
also aware that what I'm doing is right and just.
Mr. Governor, I am making this appeal to you from
six areas of concern based in fact, based in substance and based in
THE CRIME - The officers involved in the
investigation including myself, questioned from the very beginning
the means Bannister employed which resulted in the death of Mr.
Ruestman. What kind of "hit man" travels by bus, uses a badly
damaged firearm, and lets himself be observed throughout the day by
numerous people at the scene of the crime? Why was the victim's
wound a downward angled contact wound instead of a direct fire
wound? These facts, in my mind, call into question the State's
version of how this crime was committed.
THE CONFESSION - In an extraordinary departure
from established Department procedure, there was no tape recorded or
signed confession indicating the crime was the result of a contract
or conspiracy. These tools of evidence were utilized in all
investigations whether misdemeanor or felony crimes had been
committed. The absence of any taped or signed confession supports
Bannister's claim that he never confessed to a "contract killing".
THE CHANGE OF VENUE - Many people involved in the
investigation and prosecution hoped that the Defense motion for
change of venue would result in the transfer of the trial to
McDonald County , and were rejoiced when it was; after all, it was
generally felt that this was the only location a jury would almost
with certainty sentence Bannister to death.
THE LACK OF DEFENSE - Even those of us involved
in the investigation began to see sense that justice would not be
served by the appointment of the Circuit Public Defender to
represent Bannister. Although the attorney was well liked and
respected, he had no experience in preparing for, assisting or
presenting the kind of defense Bannister was Constitutionally
guaranteed. The attorney seldom contacted Bannister, had no budget
for any defense investigative work, had no legal assistant to help
with the case work, and lacking those resources was unable to
perform that work himself. In fact he was burdened with a huge
caseload of misdemeanor and felony defense cases while he was
attempting to defend Bannister. We might have wanted to see
Bannister convicted, but we were ashamed for the limitations of our
State's legal system. During the trial we saw, and were embarrassed
to see that Bannister did not receive adequate representation. This
may be insignificant to those in the Appellate process, but did not
go unnoticed by those of us who depend on the protection guaranteed
by our Constitution.
THE SENTENCE COMPARED TO THE OFFENSE - Mr.
Governor, since I began my service in law enforcement in 1977, I
have seen horrors and tragedies I will never be able to forget, nor
does any law enforcement officer, firefighter or paramedic; these
things will always be a part of our work. And yet, I have seen
crimes that although had more aggravating and terrible circumstances
surrounding them, have not only not resulted in the death penalty
but haven't even resulted in life sentences. Bannister's crime does
not justify the death penalty, because the aggravated circumstance
"murder for hire" was never proved at trial, just suggested.
HOW WE HAVE CAPITALIZED ON THE DEATH OF DARRELL
RUESTMAN - Bannister's arrest was the result of outstanding
cooperation between Newton County Sheriff's Dept. and the Joplin
Police Dept., and superb police work by all the officers involved.
Yet I am sorry to say that some officers involved in the
investigation including myself, have used the tragic death of
Darrell Ruestman to further our own positions. It seems one of the
investigators sold his knowledge about the case to a "Detective
Magazine" Another refers to "how he solved the crime and captured
Bannister" when he campaigns for elected office. I myself have
offered my account of the criminal investigation and trial in both
college presentations and police training classes.
This letter has been lengthy Mr. Governor, but by
it I have attempted to convey to you points of reason, perhaps
points of morality that you should consider. Let us grieve for the
loved ones who survive Darrell Ruestman. Let us not, however, grieve
for the loss of a life that could be and should be saved. We never
proved that this was a contract killing, and that is the element
missing from the justifiable use of the death penalty. May God grant
you the strength of wisdom and the assurance of mercy in your
decision to lift the sentence of death from Alan Bannister, and keep
him imprisoned for life.
Most Respectfully Yours,
Marshall J. Matthews,
Shall Suffer Death
"The State of Missouri is committing as
premeditated a murder as possible, far more heinous and deliberate
than my crime. Thank you to all of you who have supported me." -
Last words of Alan Jeffrey Bannister.
Alan J. Bannister had been on Death Row in
Missouri since March 10, 1983. He has never denied killing Darrell
Reustman during a struggle. Alan was initially offered a life
term,but rejected this because he was not guilty of a first degree
offense. The prosecuting attorney portrayed this as a contract
killing in order to get special circumstances for the death penalty.
There was never any evidence of this- only an arresting officer's
testimony of an alleged confession that he did not even write down.
It is very suspicious that this was enough to warrant the death
penalty, but not enough to charge another person with the hiring.
They know there is no evidence of a contract killing. This is why
nobody else was ever charged in connection to this crime. Alan was
never paid by anyone.
Ray Gordon, Alan's appointed "public defender"
now serves as judge in Missouri. His conduct in Alan's trial
contradicts the Constitution of the United States. He offered no
defense and spent less than an hour with Alan before the trial took
place. Alan had a hearing to determine if he had adequate counsel,
his counsel was a good friend of Ray Gordon!!
The International Bannister
The International Bannister Foundation was set up
in memory of Alan Jeffrey (A.J.) Bannister on the 22nd October 1997,
who was sentenced to death by way of MANUAL Lethal Injection in
A.J. as he was better known, was on death row for
over 15 years, constantly fighting the American Justice System for a
retrial, as most of the evidence in court was circumstantial, and
evidence that should have been submitted in court, was not. A.J. was
not only fighting for himself, but also for other inmates on the
injustice of the American Judicial System, in an attempt to set a
precedence to correct the system. The International Bannister
Foundation is set up with the kind written permission of Alan's
family (mother, father, brother's and sister's).
The foundation is a
membership organization, we are NOT political, colour prejudice or a
religious group, we are MAINLY an ANTI-CAPITAL and PRO-HUMAN RIGHTS
ACTION and SUPPORT group. We comfort and support, inmates, inmates
families, inmates of whom their human rights have been violated and
we also support our own membership if an execution is imminent. If
you would like to order the book "SHALL SUFFER DEATH" by A.J.
Bannister, please go to the Items for Sale.
A.J. Bannister has spent 13 years on Missouri's
Death Row. On December 6, 1994, he ate his last meal and said good-bye
to his family and friends. The man who had captured the attention
and earned the respect of millions throughout the world, was sitting
within feet of the execution chamber, waiting to be put to death.
A.J.' life and his case are the subject of the film documentary "RAISING
HELL"; his ability to articulate his viewpoint with extraordinary
clarity has led to countless interviews world-wide. He has
systematically confounded the popular image of a "death row inmate."
This book examines the American Criminal Justice
System and the political forces at work behind it. A.J. has never
denied his involvement in the crime which resulted in the death of
another human being. However, pivotal to the severity of his
sentence is a shocking combination of official incompetence, perjury
and the violation of constitutional rights. In 1994, A.J. Bannister
received a last minute stay of execution. As this book went to press,
he remained under the sentence of death.
On the 22nd October, 1997, A.J. Bannister was
executed by manual lethal injection. From that day to this, the Co-founders
of The International Bannister Foundation, along with A.J.'s
immediate family (mother, father, brother's and sister's), started
the foundation to carry on where A.J. left off, fighting the
injustice of the American Judicial System and of the Human Rights of
all inmates, whether they are on death row or general population,
this was A.J.'s last living and written statement to his friends.
To order your copy of "Shall Suffer Death", send
$15.00 plus $2.50 for shipping and handling (UK Total = £11.00) to:
Send a cheque (check)/International Money Order made out to "The
Bannister Foundation" at: The International Bannister Foundation, 28
Craigdimas Grove, Dalgety Bay, Fife, KY11 9XR, Scotland, United
Contrary to accusations made by Lindsay Graham
Bannister that the IBF, in part or in whole, are profiteering from
the sale of the above book are unfounded. Proof of this statement
can be produced in any Court of Law anywhere in the world by the IBF
and Biddle Publishing/Audenreed Press. The IBF receive no proceeds
whatsoever from the sale of the above book.
4 F.3d 1434
Alan Bannister, Appellant,
Bill Armontrout; Attorney General of the State
of Missouri, Appellees.
Circuits, 8th Cir.
WOLLMAN, Circuit Judge, BRIGHT and HENLEY,
Senior Circuit Judges.
HENLEY, Senior Circuit Judge.
Alan Bannister was convicted
of capital murder and sentenced to death for the
murder of Darrell Reustman. His conviction and
sentence were affirmed on direct appeal. State
v. Bannister, 680 S.W.2d 141, 147 (Mo.1984),
471 U.S. 1009 , 105 S.Ct. 1879, 85 L.Ed.2d
170 (1985). His motions for post-conviction
relief were denied. Bannister v. State, No.
70715 (Mo. Sept. 1, 1988) (order); Bannister v.
State, 726 S.W.2d 821 (Mo.Ct.App.), cert. denied,
483 U.S. 1010 , 107 S.Ct. 3242, 97 L.Ed.2d
747 (1987). Bannister now appeals a
judgment of the district court
denying his petition for a writ of habeas corpus
under 28 U.S.C. Sec . 2254. Bannister v.
Armontrout, 807 F.Supp. 516 (W.D.Mo.1991). We
We first address Bannister's
fifth and sixth amendment challenges to an
August 23, 1982 interrogation. The relevant
facts are as follows.
Reustman lived in a trailer
park in Springfield, Missouri with Linda
McCormick. Around 10:00 p.m. on August 21, 1982,
Reustman answered a knock at the front door of
the trailer. After Reustman opened the door, he
was shot in the head. Reustman died a short time
later, without identifying his assailant.
Although McCormick was in the trailer at the
time of the shooting, she was in the back and
did not see who shot Reustman. However,
McCormick and others had seen Bannister around
the trailer earlier in the evening.
Around 5:15 a.m. on August
22, 1982, police officers arrested Bannister at
a Joplin, Missouri bus station. After the
officers read Bannister his Miranda
rights, Bannister told them he would wait to
talk to an attorney. The officers took Bannister
to the Joplin city jail, where they again
advised him of his Miranda rights. He again
refused to talk and said he wanted to talk to an
attorney. However, as the officers discussed
going to a nearby motel to determine if
Bannister had registered there, Bannister
volunteered that he had registered under an
While Bannister was being
transported to the county jail, he asked officer
Marshall Matthews about the criminal charges and
the penalties. Matthews told Bannister he was
being charged with capital murder and that the
penalty was death or life imprisonment.
Bannister asked what the penalty would be for a
When the police car pulled
onto the jail parking lot, Bannister stated he
should have "stuck to [his] own profession."
When Matthews asked what it was, Bannister
replied "robbing banks. I never got caught."
Matthews told Bannister that the Federal Bureau
of Investigation (FBI) would be interested in
talking to him and Bannister asked if the FBI
would be involved in the investigation.
On entering the jail,
Bannister told Matthews he would like to talk to
the person in charge. Matthews took Bannister to
Sheriff Joe Abramowitz. At that time, Abramowitz
did not want to talk to Bannister, but advised
him it would be in his best interest to
At 10:30 a.m. the next day,
August 23rd, Bannister met with Abramowitz and
officers Don Richardson and Bob Barnett. After
being read his Miranda rights, Bannister stated
he understood his rights and wanted to talk.
Bannister then signed a waiver form. Bannister
told the officers that he had been living in
Peoria, Illinois with Rick Wooten and that
Wooten had asked him if he would like to make
some money killing a man. Wooten explained that
McCormick's husband wanted Reustman killed and
would pay $4,000.00. Bannister agreed and Wooten
gave him a $1,500.00 down payment, a gun, a bus
ticket, and a slip of paper with Reustman's name
After the officers had shown
Bannister a gun they had recovered from a field
near Reustman's trailer, Bannister agreed to
take them back to the field to search for
additional evidence. En route to the field,
Bannister showed the officers a vacant house
where he had test-fired the gun. At the field,
Bannister directed the officers to the torn-up
slip of paper with Reustman's name and address
and live ammunition.
Before trial, Bannister moved
to suppress his statements. On October 25, 1982,
Bannister, who was represented by a public
defender, testified at a suppression hearing.
Bannister asserted that the statements were
involuntary because he had been denied medical
attention. Bannister testified that he had
repeatedly requested medical attention for pain
from old stab wounds, but did not receive any
attention until he talked. Officer Richardson
testified that although Bannister had complained
about pain, he did not ask to stop the interview
or to see a doctor. Abramowitz testified that
Bannister did not appear to be in pain. The
court denied Bannister's suppression motion.
At trial, Bannister was
represented by public defender Ray Gordon.
Gordon objected to officer Barnett's testimony
concerning Bannister's statements.
The trial court indicated that it thought the
matter had been resolved at the suppression
hearing. Gordon responded that he believed that
Bannister had been appointed an attorney before
the interrogation. The state replied that the
court had already ruled on the matter at the
suppression hearing, and the record would
reflect when an attorney had been appointed. The
trial court noted that the docket sheet showed
that Bannister had appeared before a magistrate
sometime on August 23, but did not indicate the
The court then overruled the objection.
In addition to testimony
about Bannister's statements and evidence
derived therefrom, the state introduced
testimony of residents who had seen Bannister in
the vicinity of the trailer. However, no one
could identify Bannister as the person who shot
Reustman or the person seen running from
Reustman's trailer. The state also introduced
physical evidence which the police had obtained
independently of Bannister's statements. On
August 22, the police searched a field next to
Reustman's trailer and recovered a gun, a shell,
a shirt, and a baseball cap.
In addition, at the time of
Bannister's arrest, officers administered a gun
residue test and took fingernail, hair, and soil
samples. Although Dr. Philip Whittle, the
state's expert, testified that the gun recovered
at the field was the murder weapon, he could not
link the gun to Bannister. There were no
identifiable prints on the gun, and the gun
residue test was negative. Dr. Whittle stated
that tests could not establish the presence of
blood on the shirt, baseball cap or fingernail
Moreover, comparison of soil
samples taken from the field and from
Bannister's shoes was "not an exact comparison
by any means."The jury convicted Bannister of
capital murder. At the penalty phase, Gordon
presented no mitigating evidence, but argued
against the death penalty on religious grounds.
As the state urged it to do, the jury returned
the death sentence, finding two statutory
aggravating circumstances--that the murder was
committed for the purpose of receiving money and
that Bannister had a substantive history of
serious assaultive convictions.
On direct appeal to the
Missouri Supreme Court, Bannister argued that
admission of the statements violated his fifth
amendment rights. In his brief Bannister claimed
that his request for counsel occurred at 5:15
a.m. on August 22, 1982 and acknowledged that he
asked to talk to Sheriff Abramowitz at 7:30 that
morning. Bannister argued that "even if [he]
initiated the contacts with the law officers for
the interrogation," the statements were
inadmissible under Miranda because counsel had
not been afforded and requested medical
attention had been denied. Although Bannister
acknowledged that "at the time [he] requested to
talk to an attorney, the officers ceased
questioning him," without explanation, he
claimed that the police did not honor his
request. See Michigan v. Mosley, 423 U.S. 96,
104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975)
(once suspect invokes fifth amendment right to
remain silent, police must "scrupulously" honor
Bannister also alleged that
the admission of the confession violated his
sixth amendment rights. He, however, did not
cite any sixth amendment cases. Moreover, he did
not mention, as he suggested to the trial court
in his objection to Barnett's testimony, that he
had been appointed counsel before the
The state supreme court
analyzed the claim under Edwards v. Arizona, 451
U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
State v. Bannister, 680 S.W.2d at 147-48. In
Edwards, a fifth amendment case, the Supreme
Court held that an "accused ... having expressed
his desire to deal with the police only through
counsel, is not subject to further interrogation
by the authorities until counsel has been made
available to him, unless the accused himself
initiates further communication, exchanges, or
conversations with the police." 451 U.S. at
484-85, 101 S.Ct. at 1885. In addition, "even if
a conversation ... is initiated by the accused,
... the burden remains upon the prosecution to
show that the subsequent events indicated a
waiver of the Fifth Amendment right to have
counsel present during the interrogation."
Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103
S.Ct. 2830, 2834, 77 L.Ed.2d 405 (1983) (plurality
opinion, Rehnquist, J.).
The state court found that
the statements were admissible because Bannister
had initiated the conversations leading to the
interrogation and that the waiver of Miranda
rights was voluntary. 680 S.W.2d at 148. As to
the initiation prong, the court noted that
Bannister told the officers that he had used an
alias at the motel, "inquired as to the possible
punishment for capital murder, expressed regret
that he left his 'own profession' of 'robbing
banks' at which he 'never got caught,' and
speculated about FBI involvement in the current
investigation." Id. at 147.
The court also noted that on
his arrival at the county jail, Bannister asked
to see Abramowitz. Id. As to the waiver prong,
the court found that Bannister's "repeated
expressions of willingness to talk in the
absence of counsel, his volunteered statements
to officers about the shooting, his response
that he understood his rights, as well as his
action in signing the waiver form, show[ed] a
valid waiver[.]" Id. at 148.
The court also noted that "[o]ther
than mention of occasional pain from a past
injury, [Bannister] did not appear to be in pain
during questioning, did not request immediate
medical care or move to halt the interview." Id.
at 147. The court concluded "there [wa]s no
evidence of physical or psychological coercion."
Id. In his federal habeas petition, Bannister
renewed his challenge to the admission of the
statements. He asserted that he requested
counsel on August 22, 1982 and argued that the
statements were coerced because he had not
consulted with counsel or been treated by a
The district court rejected
Bannister's arguments. The court applied the
presumption of correctness under 28 U.S.C. Sec
. 2254(d) to the state court's finding
that Bannister had initiated conversations with
the police and, based on its independent review,
held that the waiver was voluntary. Bannister v.
Armontrout, 807 F.Supp. at 550. See Jenner v.
Smith, 982 F.2d 329, 331 (8th Cir.1993) ("While
we review the ultimate issue of voluntariness de
novo, subsidiary factual determinations made by
the state courts are entitled to a presumption
of correctness under 28 U.S.C. Sec .
2254(d)."), petition for cert. filed, 61 U.S.L.W.
3854 (U.S. June 4, 1993) (No. 92-1951).
On appeal, Bannister argues
that the district court erred in applying the
presumption of correctness to the state court
finding that he initiated the conversations
leading to the statements. He does not contest
that a finding of initiation is subject to a
presumption of correctness. See Self v. Collins,
973 F.2d 1198, 1217 (5th Cir.1992), cert. denied,
--- U.S. ----, 113 S.Ct. 1613, 123 L.Ed.2d 173
(1993). Rather, he argues that the finding on
initiation was erroneous because the state court
ignored the "fact" that he had requested and had
been appointed counsel at his initial
arraignment, which he claims occurred at 9:00
a.m. on August 23, 1982.
Bannister argues that because
he had been appointed counsel at the arraignment,
admission of the statements also violated his
sixth amendment right to counsel under Michigan
v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89
L.Ed.2d 631 (1986). In Michigan v. Jackson, the
Supreme Court extended Edwards to the sixth
amendment and held that "if police initiate
interrogation after a defendant's assertion, at
an arraignment or similar proceeding, of his
right to counsel, any waiver of the defendant's
right to counsel for that police-initiated
interrogation is invalid." Id. at 636, 106 S.Ct.
The state suggests that
review of Bannister's claim concerning the
effect of his initial arraignment is
procedurally barred. We agree. Bannister did not
present the factual and legal bases of his claim
that he was appointed counsel at 9:00 a.m. on
August 23, 1982 to the state courts. In the
state courts, Bannister alleged that he
requested counsel on August 22, and argued that
even if he had initiated the conversation, the
statements were involuntary because he had been
denied medical attention.
This court has held that "the
same facts and legal arguments must be present
in both the state and federal claims or federal
review is barred." Bolder v. Armontrout, 921
F.2d 1359, 1364 (8th Cir.1990), cert. denied,
--- U.S. ----, 112 S.Ct. 154, 116 L.Ed.2d 119
(1991). "This means that the federal claim
should not present significant additional facts
such that the claim was not fairly presented to
the state court." Kenley v. Armontrout, 937 F.2d
1298, 1302 (8th Cir.), cert. denied, --- U.S.
----, 112 S.Ct. 431, 116 L.Ed.2d 450 (1991). "Just
as the State must afford the petitioner a full
and fair hearing on his federal claim, so must
the petitioner afford the State a full and fair
opportunity to address and resolve the claim on
the merits." Keeney v. Tamayo-Reyes, --- U.S.
----, ----, 112 S.Ct. 1715, 1720, 118 L.Ed.2d
In Keeney, a petitioner
failed to present material facts in support of a
constitutional claim in the state courts. He
sought an evidentiary hearing in the district
court. The Supreme Court held that he was not
entitled to a hearing unless he could "show
cause for his failure to develop the facts in
state-court proceedings and actual prejudice
resulting from that failure[ ]" or "show that a
fundamental miscarriage of justice would result
from failure to hold a federal evidentiary
hearing." Id. at ----, 112 S.Ct. at 1721. In
Keeney, the Court emphasized the importance of "ensuring
that full factual development takes place in the
earlier, state-court proceedings." Id. at ----,
112 S.Ct. at 1719.
The Court noted that "state
court is the appropriate forum for resolution of
factual issues in the first instance, and
creating incentives for the deferral of
factfinding to later federal-court proceedings
can only degrade the accuracy and efficiency of
judicial proceedings." Id. at ---- - ----, 112
S.Ct. at 1719-20. The Court believed its holding
advanced comity, by reducing "the 'inevitable
friction' that results when a federal habeas
court 'overturn[s] either the factual or legal
conclusions reached by the state-court system.'
" Id. at ----, 112 S.Ct. at 1719 (quoting Sumner
v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770,
66 L.Ed.2d 722 (1981)).
In reply to the state's
argument, Bannister does not assert cause and
prejudice in an attempt to overcome the bar; nor
does he request a remand for an evidentiary
hearing to establish his claim. Rather, he
maintains the record supports his claim that he
requested and was appointed counsel at 9:00 a.m.
on August 23, 1982. He is mistaken. Although the
trial court docket sheet indicates Bannister
appeared before a magistrate on the 23rd and
that his case was "referred" to a public
defender, as the trial court noted, it does not
state the time of the appearance. Bannister
attempts to overcome this obvious problem by
citing to an undated affidavit, in which he
states that he appeared before the magistrate at
9:00 a.m. on August 23rd.
However, based on our review
of the record, it appears the first time
Bannister attempted to submit the affidavit to
any court was to the district court in
connection with his suggestions in support of a
post-judgment motion pursuant to Fed.R.Civ.P.
59(e). In addition, the Rule 59(e) motion was
the first time Bannister made the legal
arguments he advances on appeal.
A Rule 59(e) motion " 'cannot be used to raise
arguments which could, and should, have been
made' before the trial court entered final
judgment." Woods v. City of Michigan City, 940
F.2d 275, 280 (7th Cir.1991) (quoting Simon v.
United States, 891 F.2d 1154, 1159 (5th
Although we do not consider
Bannister's fifth and sixth amendment claims as
they relate to his August 23 appearance, we will
consider his fifth amendment claim that the
statements were involuntary because Abramowitz
told him it would be in his best interest to
cooperate. Even though Bannister did not
precisely articulate the issue in the state
court, we believe he fairly presented both the
factual and legal bases of the claim to the
state supreme court, see Kenley v. Armontrout,
937 F.2d at 1303 (federal court may review
claims where there is an "arguable factual
commonality" with state claims) (quotation
omitted), and that the court resolved the claim.
The court noted that Abramowitz had "advised [Bannister]
to tell the truth" and concluded that the
statements were not the product of psychological
coercion. State v. Bannister, 680 S.W.2d at 147.
We, however, find no merit to
Bannister's argument that the statements were
coerced by a promise of leniency. In Bolder v.
Armontrout, 921 F.2d at 1366, this court
rejected a similar argument. We held that an
officer's advice that "telling the truth 'would
be better' ... did not constitute [an] implied
or express promise[ ] of leniency." Id. We next
address Bannister's challenge to the trial
court's denial of his pro se motion for a
psychiatric examination and his counsel's
effectiveness in investigating his mental
condition. In the motion Bannister stated, "I
think I need psychiatric help."
On January 18, 1983,
Bannister appeared at a hearing. He told the
court he needed a mental examination because
while in prison he had had trouble sleeping and
had become irritable and forgetful. Bannister
denied having a personal or family history of
mental illness or having had a mental
examination in ten years. He was able to respond
to the court's questions concerning his family,
education, and date. The court denied the motion,
noting that Bannister was well-oriented and that
there was "no indication that he was in anything
other than good mental state of health."
Bannister did not challenge
the trial court's denial of the motion on direct
appeal. The claim is not barred, however,
because the state courts considered the merits
of his claim in Bannister's Rule 27.26 motion.
See Ylst v. Nunnemaker, --- U.S. ----, ----, 111
S.Ct. 2590, 2593, 115 L.Ed.2d 706 (1991). In the
motion, Bannister also raised the related claim
that Gordon was ineffective for failing to
investigate his mental history in order to
present mitigating evidence. The post-conviction
court held a hearing on the motion on November
15, 1985. Bannister was represented by public
defender Robert Wolfrum. Wolfrum requested a
continuance, asserting that Bannister had
informed him of the existence of psychiatric
records. The court refused a continuance.
At the hearing, only trial
counsel Gordon testified on Bannister's behalf.
Gordon stated that although he had reviewed
statutory mitigating factors, other than age and
"to the extent the information was divulged in
the discovery given by the state," he did not
investigate statutory factors or any non-statutory
mitigating factors. Gordon also did not
interview any family member, but indicated he
thought Bannister's mother had contacted the
public defender's office. Gordon testified that
during his conferences with Bannister, Bannister
was able to respond to questions and make
decisions. At the conclusion of the hearing, the
court allowed Wolfrum an additional week to
Wolfrum failed to submit
additional evidence, and the court denied the
motion. Bannister appealed the denial to the
Missouri court of appeals, arguing that the
trial court's denial of his motion for a
psychiatric examination violated his due process
rights. Bannister relied on Ake v. Oklahoma, 470
U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).
In Ake, the Supreme Court held that "when a
defendant demonstrates ... that his sanity at
the time of the offense is to be a significant
factor at trial, the State must ... assure the
defendant access to a competent psychiatrist who
will conduct an appropriate examination and
assist in evaluation, preparation, and
presentation of the defense." Id. at 83, 105
S.Ct. at 1096. In addition, in Ake, the Court
held that the "foregoing ... compels a similar
conclusion in the context of a capital
sentencing procedure, when the State presents
psychiatric evidence of the defendant's future
dangerousness." Id. Bannister contended that he
met his burden under Ake because he had
requested the examination and had been charged
with a violent crime.
The Missouri court of appeals
disagreed that Bannister met his burden under
Ake. Bannister v. State, 726 S.W.2d at 829. The
court noted that Bannister had denied having a
personal or family history of mental disease or
having had a mental examination in ten years,
that three physicians had examined Bannister
while he was in custody and found no indication
of a mental problem, and that the trial judge
found Bannister to be well-oriented. Id.
In addition, the court noted
that despite being given the opportunity at his
post-conviction hearing to supplement the record
with evidence relating to his mental condition,
Bannister failed to do so. Id. The court also
rejected Bannister's claim that counsel was
ineffective because he "failed to investigate [Bannister's]
mental condition as a defense and as a
mitigating circumstance." Id. at 829-30.
In his habeas petition,
Bannister renewed his challenges to the trial
court's denial of his motion for a psychiatric
examination and counsel's effectiveness for
failing to investigate his mental condition.
Apparently in support of both claims, Bannister
sought to expand the record with his affidavit
and affidavits from family, acquaintances, and
In his affidavit, Bannister
admitted shooting Reustman, but claimed he did
not murder him for the money, but only wanted to
hurt him "badly" out of revenge. In his
affidavit, Hough, who had a masters degree in
special education, stated he had treated
Bannister in the 1970's and that Bannister's
problems "were in the areas of temper and
disobedience of all authority." Affidavits from
family and acquaintances generally alleged that
Bannister had been a good person until he met
The district court denied
Bannister's motion to supplement the record. 807
F.Supp. at 533. Noting Bannister's failure to
submit evidence at his 27.26 hearing, the court
reasoned that granting the motion would allow
Bannister to circumvent a procedural bar. Id. As
to the merits of Bannister's Ake claim, the
court applied a presumption of correctness to
the state court underlying factual findings
and, after independent review, concluded that
Bannister failed to meet his burden under Ake.
Id. at 534-35. The court also rejected the
ineffective assistance of counsel claim, noting
that Bannister had given Gordon no reason to
investigate his mental condition. Id. at 534.
On appeal, Bannister argues
that the district court erred in denying his
motion to supplement the record. We disagree.
Keeney v. Tamayo-Reyes, --- U.S. at ----, 112
S.Ct. at 1715, clearly supports the district
court's denial. As previously discussed, in
Keeney the Supreme Court held that a
petitioner's failure to develop material facts
in the state court will be excused on a showing
of cause and prejudice or that a denial of an
evidentiary hearing would result in a
fundamental miscarriage of justice. Id. at ----,
112 S.Ct. at 1721.
Bannister does not, and could not, rely on the
fundamental miscarriage of justice exception.
Nor does he offer any legally cognizable reason
why he failed to present evidence in support of
his ineffective assistance counsel claim at his
This case is very similar to
Bolder v. Armontrout, 921 F.2d at 1364. In
Bolder, counsel offered no mitigating evidence
at the penalty phase of a capital trial. In his
27.26 petition, Bolder alleged that counsel was
ineffective for failing to investigate and
present mitigating evidence. At his 27.26
hearing, Bolder presented the testimony of three
inmates and his sister. The state court rejected
the ineffective assistance claim.
In his federal habeas
petition, Bolder alleged that counsel was
ineffective for failing to investigate and
present mitigating evidence from his childhood
minister and family friends. This court found
that review of Bolder's federal claim was
procedurally barred. We explained that "[w]hile
the legal claims in both petitions [were] the
same--ineffective assistance of counsel--the
broad factual allegations in support of the
claims [were] different." Id. Likewise, in this
case, Bannister's claim that Gordon was
ineffective in failing to investigate and
present mitigating evidence from family,
acquaintances and Hough is procedurally barred.
As to the merits of
Bannister's Ake claim, we believe that Bannister
failed to meet his burden of demonstrating that
his mental condition was likely to be a
significant issue at trial or at sentencing. "Where
a defendant offers 'little more than undeveloped
assertions that the requested assistance would
be beneficial, we find no deprivation of due
process in the trial judges's decision.' "
Bowden v. Kemp, 767 F.2d 761, 765 (11th
Cir.1985) (quoting Caldwell v. Mississippi, 472
U.S. 320, 323 n. 1, 105 S.Ct. 2633, 2637 n. 1,
86 L.Ed.2d 231 (1985)).
On appeal, Bannister argues
that he met his burden because he requested the
examination and because at the preliminary
hearing officer Richardson testified that
Bannister sometimes referred to himself in the
third person. We first note that Richardson did
not testify at the hearing on Bannister's motion
for a mental examination and that a different
judge presided at the preliminary hearing. In
any event, Bannister's arguments are without
merit. In Guinan v. Armontrout, 909 F.2d 1224,
1227 (8th Cir.1990), cert. denied,
498 U.S. 1074 , 111 S.Ct. 800, 112 L.Ed.2d
861 (1991), in similar circumstances this
court found that a petitioner had not met his
burden under Ake. In Guinan, the petitioner
relied on a "history of violent crime, the
brutality of the crime with which he was charged,
and counsel's belief that [petitioner] suffered
from a mental disease." Id. at 1227.
In regard to the first two
factors, this court noted there was no "per se
rule requiring a mental evaluation in any case
involving a defendant with a history of violent
crime charged with yet another violent crime."
Id. at 1228. In addition, this court found that
counsel's belief, which was based in part on his
difficulty in communicating with the petitioner,
was also insufficient. Id.
We next consider Bannister's
sixth amendment juror bias claims. During voir
dire, venireperson R.E. Morris volunteered that
he did not want to put Bannister in jail at
taxpayer's expense. After the trial court denied
Bannister's motion to remove Morris for cause,
Bannister used a peremptory challenge to remove
Morris. Although Morris' remark is troubling,
Bannister's sixth amendment claim is "foreclosed
by Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct.
2273, 101 L.Ed.2d 80 (1988), in which the
Supreme Court rejected a similar claim even
though the defendant had to use one of his own
peremptory strikes to remove an objectionable
veniremember." Reynolds v. Caspari, 974 F.2d
946, 947 (8th Cir.1992) (per curiam). See also
United States v. Cruz, 993 F.2d 164, 168-69 (8th
Cir.1993). In Ross, the Supreme Court held that
"[s]o long as the jury that sits is impartial,
the fact that the defendant had to use a
peremptory challenge to achieve that result does
not mean that the Sixth Amendment was violated."
487 U.S. at 88, 108 S.Ct. at 2278.
Bannister also challenges the
trial court's exclusion of venireperson Robert
Melton. During voir dire, Melton, an ordained
minister, stated it was against his conscience
to consider the death penalty. Later, he stated
that although he would consider the death
penalty, "he probably would come up with the
same answer." To clear up any confusion, the
trial court asked Melton whether there were any
circumstance in which he would vote for the
death penalty. Melton responded that "as a
pastor, I would feel it would ruin my entire
ministry if I would say yes." The trial court
removed Melton for cause, and under Wainwright
469 U.S. 412 , 429, 105 S.Ct. 844, 854, 83
L.Ed.2d 841 (1985), the district court
applied a presumption of correctness to the
trial court's action.
On appeal, Bannister argues
that the presumption of correctness should not
apply because the trial court failed to make
factual findings in support of its decision.
This argument is without merit. In Wainwright v.
Witt, 469 U.S. at 430, 105 S.Ct. at 855, the
Supreme Court "decline[d] to require the judge
to write out in a separate memorandum his
findings on each juror excused." The Court
believed that "[a] trial judge's job is
difficult enough without senseless make-work."
Id. The Court also held that where there was a
transcript of the voir dire a judge was not "required
to announce for the record his conclusion that
[a juror] was biased, or his reasoning." Id. As
did the district court, we find the record
supports the trial court's decision to remove
Melton. See Hatley v. Lockhart, 990 F.2d 1070,
1072 (8th Cir.1993).
We turn to Bannister's
argument that the trial court violated his
eighth and fourteenth amendment rights when it
answered a jury question about parole. During
penalty phase deliberations, the jury asked the
trial court whether "life imprisonment would be
for fifty years without any possibility of
parole ... or does it come up for review every
ten years, or five years, or seven years?" The
court first told the jury, "The law is stated in
the instructions, and that's the way it is.
That's the law." The jury then asked, "There's
no way he would be eligible for parole?" The
court responded, "Under the law that exists,
there is none now."
On appeal, Bannister argues,
as he did in the state and district courts, that
the trial court's comment prejudiced him because
the jury impermissibly considered the
possibility of parole in deciding to recommend
the death sentence. Bannister relies on Caldwell
v. Mississippi, 472 U.S. at 323, 105 S.Ct. at
2636, wherein the Supreme Court reversed a death
sentence because the prosecutor had misled a
jury into believing that "responsibility for
determining the appropriateness of a death
sentence rests not with the jury but with the
appellate court which later reviews the case."
Bannister's argument is
without merit. In Gilmore v. Armontrout, 861
F.2d 1061, 1064-65 (8th Cir.1988), cert. denied,
490 U.S. 1114 , 109 S.Ct. 3176, 104 L.Ed.2d
1037 (1989), this court found that a
prosecutor's comments during a penalty phase
closing argument that the Missouri legislature
might modify the parole statute and that the
governor could commute a life sentence did not
violate the federal constitution. This court
distinguished Caldwell, noting that the
prosecutor's comments in Gilmore "did not
mislead the jury; rather, they accurately
apprised it of the potential consequences of its
sentencing alternatives." Id. at 1066.
This court relied on
California v. Ramos, 463 U.S. 992, 995, 103 S.Ct.
3446, 3450, 77 L.Ed.2d 1171 (1983), in which the
Supreme Court upheld a state statute which
required that a capital sentencing jury be
informed about the governor's power of
commutation. The Supreme Court explained that
the instruction was "both accurate and relevant
to a legitimate state penological interest--that
interest being a concern for the future
dangerousness of the defendant should he ever
return to society." Caldwell, 472 U.S. at 335,
105 S.Ct. at 2643.
We next address Bannister's
contention that the district court erred in
concluding that certain evidentiary and
instructional penalty phase claims were
procedurally barred. On direct appeal, Bannister
argued that the trial court erred in admitting
into evidence an exhibit which showed that he
had been paroled on a previous conviction.
Bannister argued that the admission of the
exhibit prejudiced him, as demonstrated by the
jury question about parole. Bannister also
argued that the trial court erred in failing to
instruct the jury that it could consider as
mitigating evidence that he was acting under the
domination of Wooten.
The state supreme court
rejected both claims under plain-error review.
The court upheld the admission of the exhibit,
noting it was relevant to punishment. 680 S.W.2d
at 146. The court also found that Bannister had
produced insufficient evidence to support an
instruction that he was acting under the
substantial domination of Wooten, noting that
Bannister had agreed to the contract killing and
that he had killed Reustman while Wooten
remained in Illinois. Id. at 149.
In his habeas petition,
Bannister renewed these evidentiary and
instructional claims. The district court found
that the claims were barred, despite the fact
that the Missouri Supreme Court had reviewed the
claims for plain error. 807 F.Supp. at 538, 542.
In the facts of this case, we agree with
Bannister that the district court erred in
refusing to consider the merits of the claims.
As Bannister points out, in
Williams v. Armontrout, 877 F.2d 1376, 1379 (8th
Cir.1989), cert. denied,
493 U.S. 1082 , 110 S.Ct. 1140, 107 L.Ed.2d
1044 (1990), this court held that because
the Missouri Supreme Court had conducted plain
error review, "no procedural defect exists to
bar federal review." See also Baker v. Leapley,
965 F.2d 657, 659 (8th Cir.1992) ("We may
consider the merits of the jury instruction
issue because the [state supreme court] reviewed
the instructions for plain error despite [petitioner's]
failure to object to them at trial.").
We, however, find the claims
to be without merit. Because the jury could
consider the possibility of parole, there was no
error in the admission of the exhibit showing
that Bannister had been paroled. We also find
Bannister's claim regarding the failure of the
trial court to submit an under-the-domination-of-another
instruction without merit. In this murder-for-hire
case, the Missouri Supreme Court's finding that
Bannister failed to produce sufficient evidence
to warrant submission of the instruction is
supported by the record. See Williamson v. Jones,
936 F.2d 1000, 1004 (8th Cir.1991), cert. denied,
--- U.S. ----, 112 S.Ct. 901, 116 L.Ed.2d 802
The Supreme Court has made
clear that "state courts need give jury
instructions in capital cases only if the
evidence so warrants." Delo v. Lashley, --- U.S.
----, ----, 113 S.Ct. 1222, 1224, 122 L.Ed.2d
620 (1993). In addition, " 'a defendant's
constitutional rights are not violated by
placing on him the burden of proving mitigating
circumstances sufficiently substantial to call
for leniency.' " Id. (quoting Walton v. Arizona,
497 U.S. 639, 650, 110 S.Ct. 3047, 3055, 111
L.Ed.2d 511 (1990)).
Bannister claims that the
state deprived him of due process by its late
notice of its intent to seek the death penalty.
Bannister first raised the claim in the district
court in a Rule 59(e) motion. The district court
correctly found that presentation of the claim
in a 59(e) motion was the functional equivalent
of a second petition, and as such was subject to
dismissal as abusive. As previously explained, a
Rule 59(e) motion cannot be used to raise
arguments that could have been raised before
judgment was entered. Cf. Guinan v. Delo,
5 F.3d 338, 341 (8th Cir.1993) (district
court correctly treated Rule 60(b) motion as
second petition because it sought to "raise
claims that ... could have been raised in [the]
original habeas petition"); Smith v. Armontrout,
888 F.2d 530, 539-41 (8th Cir.1989) (claim
raised for first time in motion to remand
dismissed as abusive). The district court also
correctly found that review of the claim was
procedurally barred, and that Bannister had
failed to demonstrate cause or prejudice to
overcome the procedural bar or the abuse of the
As indicated, the judgment of
the district court denying Bannister's petition
for relief under 28 U.S.C. Sec . 2254
should be, and hereby is, affirmed.
BRIGHT, Senior Circuit Judge,
I concur in the result.
Defendant appears in custody.
State appears by Pros[ecuting] Attorney.
Complaint read to Defendant and Defendant states
he understands charges and acknowledges receipt
of copy thereof. Defendant advised of right to
counsel and right to confer with counsel ...
before further proceedings. Defendant claims
indigency and files written application for
appointment of Public Defender. Found eligible.
Case referred to Public Defender. Formal
arraignment continued to August 24 ... Defendant
remanded to custody of sheriff on failure to
The date on the copy of the
docket sheet included in the record on appeal
appears to be August 23, 1982, but the notation
of the date is difficult to read. In his opening
brief, Bannister asserts he appeared before a
magistrate on August 23, but in his reply brief
he states he appeared on August 22. However, at
oral argument and in an affidavit, Bannister
asserted the date of his appearance was August
Nor do we address Bannister's
argument that the trial court's comment violated
state law. See Monroe v. Collins, 951 F.2d 49,
52 (5th Cir.1992) (court refused to consider the
question whether jury's comment about parole
violated state law, because comment did not
violate federal constitution).
100 F.3d 610
Paul K. Delo, Appellee.
Federal Circuits, 8th Cir.
Before WOLLMAN, BRIGHT and HENLEY,
HENLEY, Circuit Judge.
Alan J. Bannister, a Missouri
death-row inmate, appeals from a judgment of the
dismissing a successive petition for a writ of
habeas corpus filed pursuant to 28 U.S.C
Section(s) 2254. We affirm.
In 1983 a jury convicted
Bannister of the capital murder of Darrell
Reustman and he was sentenced to death. His
conviction and sentence were affirmed on direct
appeal, State v. Bannister, 680 S.W.2d 141 (Mo.
1984) (en banc), cert. denied,
471 U.S. 1009 (1985). His motions
for state post-conviction relief were denied,
e.g., Bannister v. State, 726 S.W.2d 821 (Mo. Ct.
App.), cert. denied,
483 U.S. 1010 (1987), as was a
section 2254 petition for a writ of habeas
corpus, Bannister v. Armontrout, 807 F. Supp.
516 (W.D. Mo. 1991). We affirmed the denial of
habeas relief. Bannister v. Delo, 4 F.3d 1434
(8th Cir. 1993), cert. denied, 115 S. Ct. 418
(1994) (Bannister I).
Bannister thereafter filed a
subsequent petition. The district court
dismissed that petition, holding that the claims
in it were either successive or abusive and
Bannister had not demonstrated cause and
prejudice under Wainwright v. Sykes, 433 U.S. 72
(1977), or produced clear and convincing
evidence of his actual innocence under Sawyer v.
Whitley, 505 U.S. 333 (1992), so as to permit
Bannister v. Delo, No. 94-1141-CV-W-9 (W.D. Mo.
Dec. 5, 1994) (order). While Bannister's appeal
was pending, the Supreme Court decided Schlup v.
Delo, 115 S. Ct. 851 (1995). In Schlup, as to
guilt-phase actual innocence claims, the Court
rejected the "clear and convincing" Sawyer
standard and adopted the more lenient "more
likely than not" standard of Murray v. Carrier,
477 U.S. 478, 496 (1986). Id. at 867. On the
state's motion, we remanded the case to the
district court "for consideration of appellant's
guilt-phase claims in light of Schlup v. Delo,
and for reconsideration of such other of the
District Court's previous rulings challenged by
appellant's appeal, as the District Court
determines is necessary and proper." (citation
omitted). We noted that the "District Court may
take additional evidence and conduct such
evidentiary hearings as it deems necessary."
On remand, Bannister filed a
motion to disqualify Judge Bartlett under 28
U.S.C. Section(s) 144 and 455(a), alleging that
the judge was biased against successive habeas
petitions. Judge Bartlett denied the motion. The
judge also denied Bannister's request for an
evidentiary hearing to establish cause and
prejudice or actual innocence and, reaffirming
much of its previous order, dismissed his
petition. Bannister v. Delo, 904 F. Supp. 998 (W.D.
Mo. 1995). This appeal follows.
Before addressing Bannister's
arguments concerning the district court's
dismissal of the habeas petition, as an initial
matter we address his contention that the court
erred in denying his motion for disqualification
under 28 U.S.C. Section(s) 144 and 455(a).
Section 144 provides that "whenever a party . .
. files a timely and sufficient affidavit that
the judge before whom the matter is pending has
a personal bias against him or in favor of any
adverse party, such judge shall proceed no
further . . . ." Section 455(a) provides that a
judge "shall disqualify himself in any
proceeding in which his impartiality might be
In support of the
disqualification motion, Bannister filed an
affidavit in which he stated that he had learned
that Judge Bartlett had recused himself from
ruling on a successive habeas petition of
another death-row inmate, Doyle Williams, and
that the judge's comments at the recusal hearing
demonstrated he was biased against successive
habeas petitions. At the hearing, Judge Bartlett
I am persuaded that I cannot
be fair. As I told counsel, I worked very hard
on the first round of this habeas, believing
that I had done what I could do to bring into
one lawsuit the federal claims, and believing
that was consistent with the rational, fair
criminal justice system.
I now find that we are
embarked on another round of litigation which
promises to be more time-consuming than the
first. I do not think that's consistent with a
rational criminal justice system. I don't think
it's consistent with any principles that the
Supreme Court has enunciated should govern this
I have concluded that in this
case it is not personal views about the merits
of the argument being raised, it is not my
personal views about the state's right to
determine to decide what penalty will be
assessed for certain crimes, . . . . I have a
strong and abiding faith in the rational system.
My personal belief is causing impatience in the
belief that this proceeding has gone beyond the
limits of rationality. And it is, I am afraid of
coloring my views on resolving the issues.
Trancript of Recusal
Proceedings in Williams v. Delo, No.
91-0230-CV-W-9, in Bannister's Supplemental
Appendix at 3. Judge Bartlett denied Bannister's
motion to disqualify, explaining his "frustrations"
in the Williams case "were related solely to my
work on th[at] case." Order of April 13, 1995 at
"In this circuit, whether
disqualification is required in a particular
case is committed to the sound discretion of the
district judge, and we review only for an abuse
of discretion." In re Kansas Pub. Employees
Retirement Sys., 85 F.3d 1353, 1358 (8th Cir.
1996) (In re KPERS). "This is so because '[t]he
judge presiding over a case is in the best
position to appreciate the implications of those
matters alleged in a recusal motion.'" Id. (quoting
In re Drexel Burnham Lambert, Inc., 861 F.2d
1307, 1312 (2d Cir. 1988), cert denied,
490 U.S. 1102 (1989)). "Accordingly,
we presume Judge Bartlett is impartial, and [Bannister]
bears 'the substantial burden of proving
otherwise.'" Id. (quoting Pope v. Federal
Express Corp., 974 F.2d 982, 985 (8th Cir.
Moreover, we must keep in
mind that in Liteky v. United States, 510 U.S.
540, 55O (1994), the Supreme Court made clear
that "[n]ot all unfavorable disposition towards
an individual (or his case) is properly
described by th[e] terms" bias or prejudice.
Rather, "[t]he words connote a favorable or
unfavorable disposition or opinion that is
somehow wrongful or inappropriate, either
because it is undeserved, or because it rests
upon knowledge that the subject ought not to
possess . . ., or because it is excessive in
degree . . . ." Id. Thus, bias can be shown if a
judge's remarks or opinions "reveal such a high
degree of favoritism or antagonism as to make
fair judgment impossible." Id. at 555. However,
"judicial remarks during the course of a trial
that are critical or disapproving of, or even
hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or
partiality challenge." Id. Also "[n]ot
establishing bias or partiality . . . are
expressions of impatience, dissatisfaction,
annoyance, and even anger, that are within the
bounds of what imperfect men and women, even
after having been confirmed as federal judges,
sometimes display." Id. at 555-56.
On appeal, Bannister does not
argue that Judge Bartlett demonstrated actual
bias, but argues he should have disqualified
himself under section 455(a) because his
comments at the Williams recusal hearing created
an appearance of bias against successive habeas
petitions. "Under Section(s) 445(a), we consider
whether the judge's impartiality might
reasonably be questioned by the average person
on the street who knew all the relevant facts of
a case." In re KPERS, 85 F.3d at 1358. We agree
with the state that a reasonable person who knew
all the circumstances--including the reasons why
Judge Bartlett recused himself in the Williams
case--would not question the judge's
impartiality in this case.
Following the above-quoted
comments, Judge Bartlett explained that he was
recusing himself because he had become
frustrated with the manner in which the Williams
case had been proceeding. The judge noted that
he had expressed frustration with the case the
previous week during a telephone conference,
which had been convened because in papers filed
shortly before a scheduled evidentiary hearing,
Williams appeared to be waiving the hearing.
During the conference, Judge Bartlett expressed
his frustration not only at Williams' apparent
change in tactics, but also at the timing and
the length of the papers. Judge Bartlett told
Williams' counsel, "it looks to me like, you're
trying to figure out how to drown everybody in
paper and make this thing absolutely as complex,
drawn out and as difficult as possible." Supp.
App. at 29. The judge further told counsel, "what
happens next week I don't know frankly . . . . [I]f
there's this much stuff that has been raised I
need to look at it over the weekend and Monday
I'll be informed and we'll sit down and decide
what to be doing." Id. at 34.
On Monday the judge recused
himself. He explained that over the weekend he
had struggled to distinguish between what he
believed was appropriate institutional
impatience with successive habeas petitions and
inappropriate personal impatience with a
particular case, and believed recusal was
appropriate because "there [wa]s a possibility
that the appropriate institutional impatience
ha[d] crossed over and will inappropriately
affect my approach to the issues in this case."
Id. at 47. The judge emphasized that his "impatience
was a development for this case only." Id. at
In context, it is clear that
Judge Bartlett recused himself in Williams
because of his frustration with the course of
that litigation, and not because of any "wrongful
or inappropriate" disposition as to successive
petitions. Litkey, 510 U.S. at 550. His remarks
during the Williams proceedings about successive
habeas petitions are "not subject to
characterization as bias or prejudice." In re
Larson, 43 F.3d 410, 413 (8th Cir. 1994). They
are not so excessive in degree "as to make fair
judgment impossible." Liteky, 510 U.S. at 555.
Indeed, during the Williams case, Judge Bartlett
did exactly what Liteky demands. We thus hold
that the district court did not abuse its
discretion in denying Bannister's motion for
III. Guilt Phase Claims
As previously noted, in 1983
a jury convicted Bannister of the August 21,
1982 capital murder of Darrell Reustman in
Joplin, Missouri. The state's evidence included
an August 23, 1982 statement in which Bannister
gave "an account of the crime from its inception
to [his] arrest" in the early morning hours of
August 22, 1982 at a bus station. State v.
Bannister, 680 S.W.2d at 147. In brief, the
evidence established that in 1982, while
Bannister was living in Peoria, Illinois, he
agreed to be the "hit" man in a contract killing
of Reustman, which had been arranged by Rick "Indian"
Wooten for Richard McCormick, who wanted
Reustman killed because he was living with
McCormick's wife, Linda McCormick.
A. Actual Innocence
We first address Bannister's
arguments concerning his Schlup v. Delo guilt-phase
actual innocence claim. "This narrow exception
in the procedural bar analysis is concerned with
actual as compared to legal innocence." Jolly v.
Gammon, 28 F.3d 51, 54 (8th Cir.), cert. denied,
115 S. Ct. 462 (1994) (internal quotation
omitted). In Schlup, the Supreme Court explained
that the petitioner's "'claim of innocence is 
not itself a constitutional claim, but instead a
gateway through which a habeas petitioner must
pass to have his otherwise barred constitutional
claim considered on the merits.'" 115 S. Ct. at
861 (quoting Herrera v. Collins, 506 U.S. 390,
To satisfy Schlup, a
petitioner must first "support his allegations
of constitutional error with new reliable
evidence--whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or
critical physical evidence--that was not
presented at trial." Id. at 865. The petitioner
must then demonstrate that "it is more likely
than not that no reasonable juror would have
convicted him in light of the new evidence." Id.
Although at trial Bannister
presented a reasonable doubt defense and
suggested that Linda McCormick had murdered
Reustman, Bannister now admits that he shot and
killed Reustman. He, however, asserts that he is
actually innocent of capital murder because he
did not intend to shoot Reustman. According to
Bannister's present theory of the case, the
shooting occurred accidently during a struggle
after Bannister confronted Reustman in a
mistaken belief that Reustman was responsible
for a stabbing Bannister had received in
Bannister claims that
although he initially believed that Wooten was
responsible for the stabbing because he had owed
Wooten money for a drug deal, Wooten had
convinced him that Reustman was responsible for
the stabbing and, giving him a gun, money for a
bus ticket, and a piece of paper with Reustman's
name and address, enabled Bannister to travel to
Joplin to confront Reustman. Bannister asserts
that he did not intend to kill Reustman, but
only wanted to "make him feel some of the pain
that I felt." Opening Br. at 7. He argues that
although he may be guilty of second-degree
murder or manslaughter, he is innocent of
capital murder, which under Missouri law
requires an element of premeditation.
See Mo. Rev. Stat. Section(s) 565.001 (1978).
In support of
his claim, Bannister submitted the affidavits of
Wooten, Beverly Taylor, an investigator who had
interviewed Wooten, and Steven Trombley, a film
maker who wrote a biography of Bannister and
directed a documentary film entitled "Rasing
Hell: Stories of A. J. Bannister."
In his November 22, 1994
affidavit, Wooten, who was incarcerated for
murder, states that he "had no contact with any
of the persons allegedly involved" with
Reustman's murder, but knew "for a fact this
murder was not a murder for hire." In her
November 28, 1994 affidavit, Taylor states that
Wooten told her he was not involved in
Reustman's murder, claiming he "would never have
had an amateur perform a 'hit'" and that
Bannister was not "the kind of boy to get
involved in a violent crime such as murder."
In his November 7, 1994
affidavit, Trombley states that based on his two-year
investigation of Reustman's killing, he
concluded that "while Bannister did shoot and
kill Darrell Reustman, the complete story is
that Richard McCormick hired Indian to kill"
Reustman, but that because Indian wanted to "pocket"
the "hit" money, he "provid[ed] Bannister with a
motive for the crime," by "duping" Bannister
into believing that Reustman was responsible for
the Arizona stabbing. Affidavit at Paragraphs 29
The district court held that
the affidavits did not come close to meeting the
Schlup actual innocence standard and thus did
not warrant an evidentiary hearing. See
Barrington v. Norris, 49 F.3d 440, 442 (8th Cir.
1995) (per curiam) (petitioner did not make "a
sufficient showing of actual innocence to
warrant a hearing on the issue"). The district
court found that Taylor's affidavit merely
summarized Wooten's claims and that Wooten's
affidavit was not only internally inconsistent,
"conclusory, incredible, and unpersuasive," but
also conflicted with Trombley's affidavit. 904
F. Supp. at 1004. As to Trombley's affidavit,
the court found that essentially it was based on
unreliable hearsay and "hopeful speculation to
come up with a theory about how the killing
happened." Id. On appeal Bannister argues that
the district court erred in failing to hold an
evidentiary hearing, asserting that the court
could not assess credibility on the basis of the
affidavits. We disagree. In Battle v. Delo, 64
F.3d 347, 352 (8th Cir. 1995), cert. denied, 116
S. Ct. 1881 (1996), we recognized that "[if] new
evidence calls the credibility of certain
witnesses into question, and their credibility
figures reasonably in our assessment, remand for
an evidentiary hearing may be appropriate.
However, the mere fact that affidavits are
presented does not automatically require such a
remand." Id. (footnote omitted). Indeed, in
Schlup, the Court held that in determining
whether an evidentiary hearing is necessary, a
district court "must assess the probative force
of the newly presented evidence in connection
with the evidence of guilt adduced at trial."
115 S. Ct. at 869. In making this assessment,
the district court "may consider how the timing
of the submission and the likely credibility of
the affiants bear on the reliability of that
evidence." Id. Bannister also incorrectly
asserts that an evidentiary hearing was required
so that he could develop evidence in support of
his claim of actual innocence. In Battle, 64
F.3d at 353, we rejected the argument that an
evidentiary hearing was necessary to enable the
petitioner to develop evidence "which, he
claim[ed], w[ould] exonerate him." Noting that
"[i]n essence, [petitioner] [wa]s asking us to
excuse his evidentiary default as to his claim
of actual innocence, . . . in order that he may
develop sufficient evidence of his actual
innocence[,]" we found "[t]his circular argument
[wa]s without merit." Id. at 354. We explained:
a remand is inappropriate
because the actual innocence gateway through a
procedural bar is not intended to provide a
petitioner with a new trial, with all the
attendant development of evidence, in hopes of a
different result. Rather, it is an opportunity
for a petitioner, aggrieved by an allegedly
defective trial and having inexcusably defaulted
the available remedies, to raise such a strong
doubt to his guilt that, in hindsight, we cannot
have confidence in the trial's outcome unless it
was indeed free of harmless error. To avail
himself of that opportunity, it is the
petitioner's, not the court's, burden to support
his allegations of actual innocence by
presenting new reliable evidence of his
Id. (internal citations and
quotation omitted). Moreover, before an
evidentiary hearing in federal court is required
a petitioner "must allege facts which, if proved,
would entitle him to relief[.]" Bowman v. Gammon,
85 F.3d 1339, 1343 (8th Cir. 1996) (internal
quotation omitted). Thus, an evidentiary hearing
is not required on a claim of actual innocence
if development of the claim would not establish
actual innocence. Id. In this case, it is clear
that the district court did not err in failing
to conduct an evidentiary hearing. On appeal,
Bannister apparently no longer relies on
Wooten's and Taylor's affidavits, but argues
that Trombley's affidavit satisfies the Schlup
standard and that the district court improperly
discredited Trombley because of his alleged
commercial interest in the case. Although the
district court believed that Trombley tended to
exaggerate because of his commercial interest in
Bannister's life, the district court correctly
concluded-- credibility issues aside--Trombley's
affidavit was not evidence of actual innocence.
See Battle, 64 F.3d at 352 (evidentiary hearing
unnecessary because even crediting affiants they
did not establish actual innocence).
Although in his affidavit Trombley set forth
Bannister's allegations that he travelled to
Joplin only "to carve [his] initials on [Reustman's]
ass" and that the shooting was accidental,
Affidavit at Paragraphs 29-30, it is clear that
Trombley does not believe Bannister. Trombley's
theory is that Wooten "devised a way to keep all
of the money for the job"--that is, Reustman's
murder--"and insulate himself from the law by
using Bannister as his dupe." Bannister's
Opening Br. at 4-5. Trombley's theory "simply
does not work to exonerate" Bannister. Battle,
64 F.3d at 352. Indeed, Trombley's theory is
that Bannister knowingly and with premeditation
murdered Reustman and is thus consistent with
the capital murder statute in effect at the
relevant time, which provided that "[a]ny person
who unlawfully, willfully, knowingly,
deliberately, and with premeditation kills or
causes the killing of another human being is
guilty of capital murder." Mo. Rev. Stat.
Section(s) 565.001 (1978)
Moreover, as the district
court found, the "evidence" in Trombley's
affidavit supporting Bannister's theory of an
accidental shooting comes from Bannister and
thus cannot be considered "new" evidence. In
Pickens v. Lockhart, 4 F.3d 1446 (8th Cir.
1993), cert. denied, 114 S. Ct. 1206 (1994), we
held that a prosecutor's affidavit stating that
a police officer had admitted making a
threatening remark to the petitioner was not new
evidence. We explained that although petitioner
did not know of the existence of the affidavit,
"petitioner knew of the basis for the claim the
day it arose because he was the person to whom
the [threatening] remark by the interrogating
officer was made." Id. at 1450 (internal
quotation omitted). Likewise, in this case
Bannister knew what Wooten had told him and what
his intent was when he confronted Reustman. As
the district court observed, "[p]utting a
different spin on evidence that was presented to
the jury does not satisfy the requirements set
forth in Schlup." 904 F. Supp. at 1004. See
Bowman v. Gammon, 85 F.3d at 1344 ("only thing 'new'
at this time is that petitioner's counsel has
read the testimony in a new light") (internal
In addition, contrary to his
assertion on appeal and as the district court
noted, Bannister is nothing like the petitioner
in Schlup, who had asserted his innocence from
the beginning. See Schlup, 115 S. Ct. at 855. In
contrast, Bannister's theory of the case has
changed over time. At trial, Bannister relied on
a reasonable doubt defense. In closing argument,
Bannister's counsel suggested that Linda
McCormick, conspiring with her husband, "did
away" with Reustman. Supplemental Tr. at 44.
Because eyewitnesses had placed Bannister at the
scene of the crime, counsel hypothesized that
Bannister was "set up to come down here just in
time to be the patsy." Id. at 45. Counsel told
the jury that under that scenario "Linda
McCormick is not even suspected. She's home
free. Richard [McCormick] is home free, and Alan
Bannister is here charged with capital murder."
Id. In his brief on direct appeal, Bannister
argued he was acting under the domination of
Wooten, asserting that the "evidence showed that
Indian was the go-between and carefully
monitored all [Bannister's] actions including
seeing that [he] made arrangements to travel
from Illinois to Missouri." Br. in No. 64896 at
23. Bannister also argued that "Indian was a
very mean person and that [he] was afraid of him."
Id. at 23. In his first post-conviction motion,
Bannister advanced a mental disease or defect
defense. In his brief on appeal of the denial of
the motion, he asserted that "in light of his "bizarre
and incriminating statements to officers, a
mental defense was essentially his sole defense."
Br. in No. 14640 at 37.
B. Cause and Prejudice
Bannister generally argues
that his "allegations of cause and prejudice in
pleadings before the district court and his
willingness to present evidence in such a
hearing indicate that the district court erred
in summarily denying relief on procedural
grounds without a hearing." Supplemental Opening
Br. at 11. Because Bannister's attempt to
incorporate by reference arguments made in the
district court "is prohibited under 8th Cir. R.
28A(j)[,]" Sidebottom v. Delo, 46 F.3d 744, 750
n.3 (8th Cir.), cert. denied, 116 S. Ct. 144
(1995), we will not address those arguments
raised in the district court. However, we
address hereinafter any specific arguments as to
cause and prejudice Bannister does raise on
Michigan v. Jackson Claim
In the present
petition, Bannister alleged that admission of
his statement given to Sheriff Joe Abramowitz
and other law enforcement officers at the Newton
County Jail at 10:30 a.m. on August 23, 1982 and
evidence obtained therefrom violated his sixth
amendment rights under Michigan v. Jackson, 475
U.S. 625 (1986). The district court held that
the claim was successive because in Bannister I
this court found that the claim was procedurally
barred and that Bannister had not alleged
sufficient cause and prejudice or actual
innocence to permit relitigation of the claim.
904 F. Supp. at 1002.
the district court rejected Bannister's
allegation of cause based on his assertion that
in Bannister I this court improperly raised a
procedural default sua sponte. The court noted
that Bannister had raised his allegation of
error in his petition for rehearing to this
court and in his petition for certiorari to the
Supreme Court, and that both petitions had been
appeal, Bannister again asserts cause based on
our alleged erroneous application of a
procedural default. Alternatively, he argues
even if he has not established cause or
prejudice or actual innocence to permit review
of the successive claim, we should review his
sixth amendment Jackson claim under the Sanders
v. United States, 373 U.S. 1 (1963), "ends of
justice" test. Although this court has indicated
that the "ends of justice" test is confined to a
showing of actual innocence, Ruiz v. Norris, 71
F.3d 1404, 1409 (8th Cir. 1995), cert. denied,
___ U.S. ___, 117 S.Ct. 384, 136 L.Ed.2d 301
(1996), because Bannister contends that but for
error of this court in Bannister I he would be
entitled to habeas relief under Michigan v.
Jackson, we address but reject his contention.
In his first
appeal, Bannister raised both fifth and sixth
amendment challenges to the admission of his
August 23 statement. The district court had held
that the admission of the statement did not
violate Bannister's fifth amendment rights under
Edwards v. Arizona, 451 U.S. 477 (1981). In
Edwards, the Supreme Court held that after an
accused "expressed his desire to deal with the
police only through counsel, [he] is not subject
to further interrogation . . . unless the
accused himself initiates further communication,
exchanges, and conversations with the police."
Id. at 484. In addition, under Edwards, the
prosecution must "show that subsequent events
indicated a waiver of the Fifth Amendment right
to have counsel present during the interrogation."
Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983) (plurality
court, applying the 28 U.S.C. Section(s) 2254(d)
presumption of correctness to the state court
findings, held that "Bannister had voluntarily
initiated conversations with the police after
Bannister had requested a lawyer." 807 F.Supp.
at 552. The state court had found that Bannister
requested counsel at on August 22 at 5:40 a.m.
and thereafter initiated conversations with the
police, by, among other things, telling officers
that he had used an alias when registering at
the motel, inquiring about the penalties for
capital murder, and on his 6:30 a.m. arrival at
the county jail asking to speak to the person in
680 S.W.2d at 147.
court also applied the presumption of
correctness to the state court findings of fact
surrounding the August 23 statement and based on
de novo review held that Bannister had knowingly
and voluntarily waived his rights. 807 F. Supp.
at 552. See Williams v. Clarke, 40 F.3d 1529,
1543 (8th Cir. 1994) (voluntariness of
confession subject to de novo review; historical
facts subject to presumption of correctness),
cert. denied, 115 S. Ct. 1397 (1995).
the district court noted that the officers had
repeatedly advised Bannister of his Miranda
rights, that he had signed a waiver of those
rights, and had expressed his desire to talk to
the police. Moreover, the district court noted
that the "atmosphere of the questioning (e.g.,
allowing Bannister to make telephone calls
during the time he was cooperating with the
sheriff plus no evidence of physical or
psychological coercion), show[ed] that
scrupulous attention was given to Bannister's
rights." 807 F. Supp. at 552.
previous appeal to this court, Bannister did not
contest that he initiated conversations with the
law enforcement officers on August 22, but
argued that the state and district courts had "ignored"
the "fact" that he had requested and been
appointed counsel at his arraignment, which he
claimed occurred at 9:00 a.m. on August 23,
1982. He further argued that because he did not
thereafter initiate the conversations with the
officers, admission of his post-arraignment
statement violated Michigan v. Jackson. In
Jackson, 475 U.S. at 636, the Supreme Court held
that under the sixth amendment "if police
initiate interrogation after a defendant's
assertion, at an arraignment or similar
proceeding, of his right to counsel, any waiver
of the defendant's right to counsel for that
police-initiated interrogation is invalid."
In Bannister I, 4 F.3d at
1440, we found that it was not surprising that
the courts had ignored Bannister's assertion
that he had been arraigned and appointed counsel
at 9:00 a.m. on August 23 and that his post-arraignment
confession violated Jackson because the first
time Bannister had raised the claim in any court
was in a Rule 59(e) motion in the district court.
Because a motion under Rule 59(e) is a motion
for reconsideration, not initial consideration,
we stated that "a Rule 59(e) motion cannot be
used to raise arguments which could, and should,
have been made before the trial court entered
final judgment." Id. (internal quotation omitted);
see also Guinan v. Delo, 5 F.3d 313, 316 (8th
Cir. 1993) (post-judgment motion cannot be used
to "raise claims that either could have been
raised in [the original] habeas petition or were
raised therein and adjudicated").
We also noted that the state
had cited Keeney v. Tamayo-Reyes, 504 U.S. 1
(1992), in its brief, and our review of the
record indicated an evidentiary default because
there was no record support for Bannister's
claim that he had been arraigned and appointed
counsel at 9:00 a.m. on August 23. 4 F.3d at
1439-40. In his appellate brief, as support for
this claim Bannister cited the state court
docket sheet and his undated affidavit in the
addendum to his brief. However, we noted that
the docket sheet did not show the time of the
arraignment and that his undated affidavit
apparently was presented to the district court
for the first time as an exhibit to his Rule
59(e) motion. Id. at 1440.
In this appeal, Bannister
does not contest that he first raised the claim
in the Rule 59(e) motion, or that he failed to
make a record in the state court that he had
been arraigned and appointed counsel at 9:00
a.m. on August 23, 1982.
Rather, he argues that this court should have
addressed the merits of his Jackson claim
because the state waived any evidentiary default.
See Miller V. Lockhart, 65 F.3d 676, 680 (8th
Cir. 1995). He asserts that we read the state's
citation of Keeney too broadly and, in any event,
at oral argument the state conceded the factual
basis of the claim by stating "then the next day
there was the court proceeding and then at 10:30
a.m. the statement began." Appendix at 65.
argues that we unfairly raised the evidentiary
default sua sponte, without affording him the
opportunity to establish cause and prejudice.
See United States v. Fallon, 992 F.2d 212, 213
(8th Cir. 1993) (court can raise abuse of writ
sua sponte "so long as the petitioner is given
adequate opportunity to respond"). Bannister
argues if given the opportunity at an
evidentiary hearing he could prove cause,
asserting that counsel was ineffective for
failing to develop the claim in the state courts.
As to prejudice, he claims that if his August 23
statement and evidence obtained therefrom had
been excluded, he would be acquitted.
The state responds that it
did not waive the default, that Bannister has
taken its statement at oral argument out of
context, and, in any event, the statement cannot
be considered as a binding judicial admission to
create a record where no factual record exists.
Alternatively, the state asserts that this court
can raise a procedural default sua sponte,
citing Prewitt v. Goeke, 978 F.2d 1073, 1077-78
(8th Cir. 1992), and in this case, as a matter
of law under Murray v. Carrier, 477 U.S. 478,
489 (1986), Bannister cannot rely on ineffective
assistance of trial or appellate counsel as
cause for the default because he failed to raise
such a claim as an independent claim in the
In any event, the state
asserts that we need not address Bannister's
arguments concerning the default in the state
courts, because, aside from the evidentiary
default in state court and his failure to timely
raise the claim in the district court in his
he is not entitled to relief under Jackson by
the nonretroactivity principles of Teague v.
Lane, 489 U.S. 288 (1989). In Bannister I, we
noted that Bannister could not rely on Jackson
in his direct appeal because the case had been
decided after Bannister's conviction became
final. We acknowledged that the state had not
raised a Teague objection and that the Supreme
Court had indicated that the Teague bar was not
jurisdictional, but noted that courts had held
that Jackson established a "new rule" for Teague
purposes. 4 F.3d at 1440 n.7.
Because we agree with the
state that Bannister is not entitled to habeas
relief under Teague v. Lane, we do not address
his arguments concerning the evidentiary default.
See Spaziano v. Singletarry, 36 F.3d 1028, 1041
(11th Cir. 1994) ("We need not address the
procedural default issue or the merits, because
we conclude that the claim is Teague-barred."),
cert. denied, 115 S. Ct. 911 (1995). However, as
he does with his default argument, Bannister
argues that because the state did not raise a
Teague issue this court should not have raised
the issue sua sponte. We disagree.
Since our decision in
Bannister I, the Supreme Court has made "clear
that [a federal] court ha[s] discretion to
address the Teague issue even in the presence of
a waiver." Jones v. Page, 76 F.3d 831, 850 (7th
Cir.), cert. denied, ___ U.S. ___, 117 S.Ct.
363, 136 L.Ed.2d 254 (1996). In other words,
even if "[t]he state does not cite Teague,  we
are free to apply it anyway." Bracy v. Gramley,
81 F.3d 684, 689 (7th Cir.), petition for cert.
filed, (U.S. Sept. 23, 1996) (No. 96-6114).
Accord Spaziano, 36 F.3d at 1041 ("The Supreme
Court has made clear that even where the State
does not argue the Teague bar at all, a federal
court has discretion to decide whether the bar
should be applied.)
In Caspari v. Bohlen, 510 U.S.
383, 389 (1994), the Supreme Court stated that
even though "the non-retroactivity principle is
not jurisdictional in the sense that federal
courts . . . must raise . . . the issue sua
sponte . . . a federal court may, but need not,
decline to apply Teague if the State does not
argue it." (Emphasis added; internal quotation
omitted). See also Schiro v. Farley, 510 U.S.
222, 229 (1994) (Court "undoubtedly" had
discretion to reach Teague issue even though
state had failed to argue it in its brief in
opposition to certiorari petition). In Caspari,
the court explained:
principle prevents a federal court from granting
habeas corpus relief to a state prisoner based
on a rule announced after his conviction and
sentence became final. A threshold question in
every habeas case, therefore, is whether the
court is obligated to apply the Teague rule to
the defendant's claim.
510 U.S. at 389 (internal
In this appeal, Bannister
concedes that Jackson was decided after his
conviction became final in 1985 when certiorari
was denied on his direct appeal, but argues that
Jackson did not create a new rule for Teague
purposes. We disagree. "[A] case announces a new
rule if the result was not dictated by precedent
existing at the time the defendant's conviction
became final." Teague, 489 U.S. at 301.
Bannister argues that Jackson was not a new rule
because it was dictated by Massiah v. United
States, 377 U.S. 201 (1964), and Brewer v.
Williams, 430 U.S. 387 (1977).
Again, we disagree. In
Massiah, 377 U.S. at 206, the Supreme Court held
that a defendant's fifth and sixth amendment
rights to counsel were violated when government
agents had surreptitiously elicited
incriminating statements from the defendant
after he had been indicted. In Brewer, 430 U.S.
at 400, the Court also held that a defendant had
not waived his sixth amendment right to counsel
when government agents had elicited
incriminating statements from him. However, in
Brewer, the Court emphasized that it was not
holding that the defendant "could not, without
notice to counsel, have waived" his sixth
amendment right to counsel, only that under the
circumstances of the case, "he did not." Id. at
Indeed, the Supreme Court has
"explicitly described its holding in Jackson as
'establish[ing] . . . a new Sixth Amendment rule.'"
Jones, 76 F.3d at 853 (quoting McNeil v.
501 U.S. 171 , 179 (1991)). "Not
surprisingly, at least five other circuits have
determined that the holding in Jackson
represents a 'new rule' for purposes of Teague
analysis." Id. (citing Flamer v. Delaware, 68
F.3d 710, 720-21 (3d Cir. 1995), cert. denied,
116 S. Ct. 807 (1996); Self v. Collins, 973 F.2d
1198, 1207 (5th Cir. 1992), cert. denied,
507 U.S. 996 (1993); Greenwalt v.
Rickets, 943 F.2d 1020, 1026 (9th Cir. 1991),
506 U.S. 888 (1992); 952 F.2d 1567,
Collins v. Zant, 892 F.2d 1502, 1510-12 (11th
Cir.), cert. denied,
498 U.S. 881 (1990)).
Bannister argues that even if
Jackson is a new rule it falls within the Teague
exception for "watershed rules of criminal
procedure implicating the fundamental fairness
and accuracy of the criminal proceeding." Gray
v. Netherland, 116 S. Ct. 2074, 2084 (1996).
However, "[t]he Supreme Court has interpreted
this category very narrowly and we do not
believe that the [Jackson] rule . . . falls
within the 'small core of rules requiring . . .
procedures that are implicit in the concept of
ordered liberty[,]'" Jones, 76 F.3d at 853-54 (quoting
Graham v. Collins,
506 U.S. 461 , 478 (1993)), and "without
which the likelihood of an accurate conviction
is seriously diminished." Teague, 489 U.S. at
Rather, "Jackson involves [a]
prophylactic rule providing [a] second layer of
protection." Collins, 892 F.2d at 1511 (internal
quotation omitted); accord Flamer, 68 F.3d at
723-24 (Jackson not a "watershed" rule but a "prophylactic
rule that provides one means of protecting a
constitutional right"); cf. Greenwalt, 943 F.2d
at 1025 ("watershed" exception inapplicable
because new rule was "a prophylactic rule which
results in exclusion of probative trial evidence").
Therefore, we hold that,
evidentiary defaults aside, Bannister would not
be entitled to relief under Jackson.
D. Ineffective Assistance
In the present petition,
Bannister argues that counsel was ineffective
during the guilt phase for failing to
investigate and present evidence that Bannister
was not a hired killer. The district court held
that this claim was successive because Bannister
had raised the claim in his previous petition,
and the court found that it was procedurally
defaulted and Bannister had not alleged
sufficient cause and prejudice or actual
innocence to excuse the default. 904 F. Supp. at
On appeal, Bannister argues
that he has alleged sufficient cause to permit
review of the successive claim because the
district court was "simply incorrect" in holding
that he did not establish cause to excuse the
default. This is an insufficient allegation of
cause. "In general to show cause, petitioner
must show that 'some objective factor external
to the defense impeded counsel's efforts' in
raising the claims earlier." Nachtigall v. Class,
48 F.3d 1076, 1079 (8th Cir. 1995) (quoting
Cornman v. Armontrout, 959 F.2d 727, 729 (8th
Cir. 1992)). "To show cause in the context of
successive or abusive claims, petitioner must
show that the claims are 'based on facts or
legal theories of which he had no knowledge when
prosecuting his prior habeas petition.'" Id. (quoting
Cook v. Lockhart, 878 F.2d 220, 222 (8th Cir.
Moreover, as the state points
out, in his previous appeal Bannister did not
challenge the district court's holding that his
guilt-phase ineffective assistance claim was
procedurally defaulted. Therefore, "[b]ecause [Bannister]
did not appeal the federal district court's
ruling of state procedural default," he cannot "collaterally
attack that unappealed [holding] in this
proceeding by arguing that he had cause to
excuse the state procedural default." Hawkins v.
Evans, 64 F.3d 543, 546 n.2 (10th Cir. 1995).
have reviewed Bannister's arguments and conclude
that the district court did not err in holding
that his ineffective assistance claim was
defaulted. Contrary to his assertions, the
summary denials of a second Rule 27.26 motion
and a belatedly filed Rule 91 motion do not "open
up the merits" of the claim. Charron v. Gammon,
69 F.3d 851, 857 (8th Cir. 1995), cert. denied,
116 S. Ct. 2533 (1996). Nor did the district
court err in holding that Bannister had failed
to demonstrate cause for the default. Bannister
argues that the refusal of the first Rule 27.26
court to grant him a continuance was state
interference, which "actually prevented post-conviction
counsel from raising the claims and presenting
the evidence in state court." Zeitvogel v. Delo,
84 F.3d 276, 279 (8th Cir.), cert. denied, ___
U.S. ___, 117 S.Ct. 368, 136 L.Ed.2d 258 (1996)
(No. 96-5765). He is mistaken. We first note
that Bannister's counsel requested the
continuance to obtain psychological information
and information from an investigating officer.
In addition, although the
court denied the request for a continuance, it
allowed counsel additional time to submit "something
that in good faith [he] fe[lt] [wa]s significant."
Tr. of 27.26 Hearing at 51. However, counsel did
not submit any additional information or ask for
additional time. We also reject Bannister's
assertion that Missouri's "insufficient funding
of [post-conviction] counsel prevented counsel
from investigating and raising the claim."
Kennedy v. Herring, 54 F.3d 678, 684 (11th Cir.
1995). "[F]inding cause in a lack of resources
would be inconsistent with the settled principle
that a state need not provide counsel in
collateral proceedings, even for petitioners
under sentence of death." Id. Also not
establishing cause is post-conviction counsel's
case load, which allegedly was heavy and
prevented him from devoting more time to this
case. See LaRette v. Delo, 44 F.3d 681, 687 (8th
Cir.) (counsel's alleged lack of time did not
establish cause), cert. denied, 116 S. Ct. 246
In any event, Bannister
cannot establish cause for any procedural bar
because the factual basis of his claim that he
was not a hired killer was reasonably available
to counsel since Bannister knew whether or not
he was a hired killer. See Forrest v. Delo, 52
F.3d 716, 719 (8th Cir. 1995) (delay in
providing transcript of plea hearing was not
cause for counsel's failure to raise claim of
judicial coercion of guilty plea since
petitioner "did not need a transcript to know
whether . . . he was coerced into pleading
guilty") (internal quotation omitted).
As the Supreme Court explained in McClesky v.
Zant, 499 U.S. 467, 498 (1991), "[i]f what
petitioner knows . . . supports a claim for
relief . . . what he does not know is irrelevant.
Omission of the claim will not be excused merely
because evidence discovered later might also
have strengthened the claim."
IV. Sentencing Phase
The jury recommended a
sentence of death, finding two statutory
aggravating circumstances--that the murder was
committed for the purpose of receiving money, Mo.
Rev. Stat. Section(s) 565.012.2(4) (1978) and
that Bannister had a substantial history of
serious assaultive convictions, Id. at Section(s)
565.012(1). At the sentencing phase, the state
introduced records showing that Bannister had
convictions for armed robbery, burglary, rape
and deviate sexual assault. In his direct
appeal, the state supreme court noted that
Bannister had conceded that a jury could
reasonably find that several of his prior
convictions were "for offenses of a 'serious
assaultive' nature" and found that Bannister's
death sentence "was not excessive or
disproportionate to the penalty imposed in
similar cases considering the crime, the
defendant, and the strength of the evidence."
680 S.W.2d at 149.
A. Ineffective Assistance
In the current petition,
Bannister alleges ineffective assistance of
counsel at the penalty phase due to counsel's
failure to investigate and present evidence that
would have cast doubt on the two statutory
aggravating circumstances. He also argues that
his fourteenth amendment due process rights were
violated because the Missouri Supreme Court
failed to conduct the type of proportionality
review mandated by state statute. The district
court found that the claims were abusive and
that Bannister had failed to demonstrate cause
and prejudice or actual innocence to permit
review. 904 F. Supp. at 1005-06.
On appeal, Bannister argues
that he supported the claims with a showing that
he was actually innocent of the death penalty.
Although Schlup establishes the standard for
demonstrating actual innocence in the guilt
phase, "[t]he Sawyer v. Whitley standard remains
the benchmark for actual innocence claims
involving eligibility for the death penalty."
Nave v. Delo, 62 F.3d 1024, 1032 (8th Cir.
1995), cert denied, 116 S. Ct. 1837 (1996). "Under
the Sawyer standard, [Bannister] must show that
by clear and convincing evidence that but for
the constitutional error, no reasonable juror
would have found him eligible for the death
penalty under Missouri law." Id. Bannister can "succeed
on his claim only 'by showing no aggravating
circumstance existed, or by showing some other
condition of eligibility was not met. Additional
mitigating evidence does not satisfy the
standard. '" Id. at 1033 (quoting Shaw v. Delo,
971 F.2d 181, 186 (8th Cir. 1992), cert. denied,
507 U.S. 927 (1993)).
Bannister asserts that the
Trombley affidavit demonstrates that he is
actually innocent of the underlying crime and
also demonstrates that he is innocent of the
aggravating circumstance that he killed Reustman
for the purpose of receiving money. For the
reasons discussed above, Trombley's affidavit
does not meet the more lenient Schlup standard;
it certainly does not meet the stricter Sawyer
standard. Trombley's affidavit, which is based
primarily on hearsay, speculation, and
Bannister's belated claims, certainly is not "clear
and convincing evidence" which would cause a
reasonable juror to have rejected the state's
evidence that Bannister had murdered Reustman
for the purpose of receiving money.
Although we need not address
Bannister's argument that he was innocent of the
second aggravating factor of having a
substantial history of serious assaultive
convictions, see Sloan v. Delo, 54 F.3d 1371,
1385 (8th Cir. 1995) (under Missouri law finding
of at least one aggravating circumstance makes
defendant eligible for death penalty), cert.
denied, 116 S. Ct. 728 (1996), we address it but
find it is without merit. Bannister asserts had
counsel investigated and presented the jury with
the circumstances surrounding his convictions
for rape, armed robberies and deviate sexual
assault, the jury would not have found his
conduct to be of a serious, assaultive nature.
As "new" evidence in support of his claim, he
relies on Trombley's affidavit and affidavits of
family and friends.
For example, in his affidavit
Trombley states that his investigation revealed
that Bannister should only have been charged
with contributing to the delinquency of a minor
and not rape because Bannister and the sixteen
year old victim had been having consensual
intercourse for months, and the rape charge was
brought by the victim's aunt after Bannister
spurned her sexual advances. Affidavit at
Paragraph 32. As to the deviate sexual assault
and one of the armed robbery convictions,
Trombley believed that counsel should have
explained that all Bannister and a co-defendant
did was "engage two prostitutes with whom [they]
had sex" and "[a]fter completing the transaction
took back the money that had been paid to the
prostitutes, and had further sexual contact with
one of the prostitutes." Id. at 33.
On appeal Bannister relies
heavily on the affidavit of Steven Maurer, a law
enforcement officer who had been a friend of
Bannister for 22 years. Maurer states that
although he could not be "totally objective with
regard to [his] impressions" of Bannister, he
believed that "most of [Bannister's] criminal
history and record was apparently misrepresented
and exaggerated at trial." In particular, Maurer
noted his belief that the arresting officer had
deceived Bannister into pleading guilty to rape
instead of the lesser charge of contributing to
the delinquency of a minor and that the medical
evidence did not support the rape victim's
allegation that Bannister had forcibly raped and
We agree with the district
court that Bannister's "evidence" does not come
close to meeting the Sawyer standard. First, as
the district court noted, none of the alleged
circumstances set forth in the affidavits can be
considered new evidence because "certainly
Bannister knew what he had done which led to the
convictions long before November 29, 1994, when
he filed the [instant] petition." Order of Dec.
5, 1994 at 7. See Sloan, 54 F.3d at 1381 (petitioner
had facts necessary to present failure to
investigate claim since "he would have known
that other individuals were aware of the
mitigating circumstances"). In any event, we
have no hesitation in concluding had the jurors
been presented with the "circumstances" as set
forth in the affidavits, no reasonable juror
would have found that the rape, armed robberies
and deviate sexual assaults were not serious,
B. Proportionality Claim
Last, we address Bannister's
assertion that the Missouri Supreme Court failed
to maintain the data base of death penalty cases
as mandated by state statute, Mo. Rev. Stat.
Section(s) 565.014 (1978) (repealed and replaced
by Mo. Rev. Stat. Section(s) 565.014 (1986)),
and thereby deprived him of his due process
rights under the fourteenth amendment.
In support of his claim
Bannister submitted the affidavits of two
assistant state public defenders, who stated
that in 1989 and 1990 they had learned that the
Missouri Supreme Court's data base of death
penalty cases was incomplete. Bannister also
submitted a study commissioned by the public
defender's office, which indicated that as of
July 1, 1994, 189 cases of inmates who had been
sentenced to life in prison without the
possibility of parole were not in the data base
in violation of the statute.
Bannister also argued that
several of the omitted cases in which defendants
had received life sentences were more similar to
his case than the cases the Missouri Supreme
Court had relied upon in conducting its review.
The district court found that the claim was
abusive and that Bannister had not presented
cause and prejudice or actual innocence to
permit review. Although we are inclined to agree
with the district court, we do not address its
abuse analysis. Even if the claim were not
abusive, Bannister would not be entitled to
This court has rejected
virtually identical challenges to the Missouri
Supreme Court's proportionality review. In
Williams v. Delo, 82 F.3d 781, 784 (8th Cir.
1996), the petitioner argued that his due
process rights were violated "because about two
hundred Missouri capital murder cases were not
in the files the court used to review the
proportionality of [his] sentence." We disagreed,
holding that "[n]ot only is this claim abusive,
but [petitioner] cannot show a due process
violation because the Missouri Supreme Court
conducted a reasoned review of his sentence." Id.
at 784-85. We explained that a federal court "cannot
look behind the Missouri Supreme Court's
conclusion or consider whether that court
misinterpreted the Missouri statute requiring
proportionality review." Id. at 785 (citing
LaRette v. Delo, 44 F.3d at 688).
In Williams, the court also
added that petitioner had not "explain[ed] why
the added cases [wer]e pertinent or how they
would have affected the proportionality review."
Id. However, in Six v. Delo, 94 F.3d 469, 478
(8th Cir. 1996), in addition to arguing that the
Missouri Supreme Court's capital data base was
missing "189 cases in which life sentences were
imposed[,]" the petitioner "cite[d] some of the
omitted published cases and argue[d] they [wer]e
more similar to [his] case than the  capital
cases cited by the Missouri Supreme Court in
upholding [the] death sentence." This court
nonetheless rejected his due process argument,
holding that petitioner "was not arbitrarily
denied his state-provided right to
proportionality review." Id. Citing Williams, we
reiterated that "[t]he Constitution does not
require us to look behind" the Missouri Supreme
Court's conclusion that the death sentence was
not disproportionate "to consider the manner in
which the court conducted its review or whether
the court misinterpreted the Missouri statute."
Thus, Bannister is not entitled to relief on his
Accordingly, we affirm the
judgment of the district court dismissing
Bannister's successive petition for a writ of
Circuit Judge, dissenting.
I respectfully dissent.
Justice Blackmun noted that "the
death penalty remains fraught with arbitrariness"
and "cannot be administered consistently and
rationally" even when states follow their
procedural safeguards. Callins v. Collins,
510 U.S. 1141 , 1144, 1147 (1994) (Blackmun,
J., dissenting) (citations omitted). When a
state fails to follow its procedural safeguards,
the administration of the death penalty becomes
irrational. Alan Bannister's death sentence
exemplifies such an arbitrary and irrational
outcome because the state supreme court's
proportionality review neglected to include life
imprisonment cases as mandated by state law.
The Missouri Supreme Court
relies on a data base to conduct a
proportionality review of all capital punishment
sentences. Bannister asserts that the Missouri
Supreme Court failed to properly maintain this
data base of capital cases as mandated by
Missouri law. Mo. Rev. Stat. Section(s) 565.014
(1978) (repealed and replaced by Mo. Rev. Stat.
Section(s) 565.014 (1986)).
Specifically, although the
state supreme court considered four capital
punishment cases during Bannister's
proportionality review, he argues that 189 life
sentence cases omitted from the State's data
base reveal the disproportionality of his death
sentence, and their omission deprived him of his
fourteenth amendment protections. The district
court regarded the claim as abusive, and found
that Bannister failed to show cause and
prejudice for not raising the claim in his
earlier habeas petition. Appellant's App. at
A8-A11 (Dist. Ct. Order, Dec. 5, 1994). I
I. Bannister Demonstrated
Cause and Prejudice for Failing to Present Claim
Regarding Proportionality Review in First Habeas
The district court found that
Bannister failed to raise the proportionality
claim in his earlier habeas petition thereby
constituting an abuse of the writ. Id. at A9.
Thus, Bannister must show cause and prejudice
for his failure to raise the claim earlier. See
McClesky v. Zant, 111 S. Ct. 1454, 1470 (1991).
The district court ruled that Bannister failed
to show cause and prejudice. Appellant's App. at
A9-A10 (Dist. Ct. Order, Dec. 5, 1994).
According to the district court, "Since 1984
Bannister has had the argument that he now
advances that the . . . cases cited by the
[Missouri] Supreme Court in its proportionality
review are not comparable to Bannister's
situation." Id. I disagree. According to Murray
v. Carrier, 477 U.S. 478, 488 (1986)(quoting
Brown v. Allen, 344 U.S. 443, 486 (1953)), an
external "objective impediment . . . [such as] 'interference
by officials' [that] made compliance
impracticable" constitutes cause. The Missouri
Supreme Court's failure to maintain its data
base without disclosing the omission of life
sentence cases to Bannister and others
exemplifies interference by the State.
Moreover, the interference
not only made it impractical for Bannister to
bring the claim, the interference made it
impossible for Bannister to bring the claim.
Bannister could not bring his claim until he
learned of the omission. Presumably we do not
require a defendant to maintain his own data
Bannister could have contested the
disproportionality of his sentence compared to
the cases used by the state supreme court, he
could not have demonstrated the
disproportionality until he learned of the
omitted cases. As the Fourth Circuit
acknowledged in Peterson v. Murray, 904 F.2d
882, 887 (4th Cir. 1990), although the state
court discussed only the most relevant cases in
its proportionality review, its decision
survived attack in federal habeas because the
state court reviewed all capital murder cases.
Thus, a state court need not discuss every case
it reviews, but it must review all relevant
Accordingly, that the
Missouri Supreme Court cited and discussed
certain cases does not preclude Bannister from
challenging whether the state court reviewed all
relevant cases. The State's failure to disclose
the omission of life sentence cases from its
data bank prevented Bannister from bringing his
claim earlier. As discussed below, the state
court's failure to consider the omitted cases
clearly prejudiced Bannister in his
proportionality review. As a result, Bannister
demonstrated both cause and prejudice allowing
this court to reach the merits of his claim.
II. Prior Cases Do Not
Dictate the Outcome of Bannister's
Proportionality Review Claim.
The majority relies on this
court's earlier cases to reject Bannister's
claim on its merits. Op. at 627-28. The majority
interprets these cases as precluding this court
from reviewing the State's proportionality
review procedure for fourteenth amendment
violations. Id. With all due respect, the
majority misconstrues this court's earlier
In Foster v. Delo, 39 F.3d
873, 882-83 (8th Cir. 1994)(citing Pulley v.
Harris, 465 U.S. 37, 50-51 (1984), cert. denied,
115 S. Ct. 1719 (1995)), we recognized that the
federal Constitution does not require a state to
conduct a proportionality review of a death
sentence. We also acknowledged, however, that
when state law requires such review "the
Fourteenth Amendment of course entitles [the
defendant] to procedures to ensure that the
right is not arbitrarily denied." Foster, 39
F.3d at 883 (citing Wolff v. McDonald, 418 U.S.
539, 557 (1974)).
This court's prior cases held
that the particular petitioners each failed to
demonstrate an arbitrary denial of their state-created
right to a proportionality review. See, e.g.,
Six v. Delo, 94 F.3d 469, 478 (8th Cir. 1996);
Williams v. Delo, 82 F.3d 781, 784-85 (8th Cir.
1996); LaRette v. Delo, 44 F.3d 681, 688 (8th
Cir.), cert. denied, 116 S. Ct. 246 (1995);
Foster, 39 F.3d at 882-83. Each case concerned
particularly brutal and heinous crimes such that
the omission of life sentence cases did not
render the proportionality reviews arbitrary.
See Six, 94 F.3d at 472-73, 478 (describing
crime and ruling that defendant was not
arbitrarily denied proportionality review before
discussing limits of federal court review of
state's proceedings); Williams, 82 F.3d at 785 (noting
in dicta that prisoner failed to show how
omitted cases would affect outcome of
proportionality review); cf. Williams I, 912
F.2d 924, 927 (8th Cir. 1990)(describing crime);
LaRette, 44 F.3d at 684; Foster, 39 F.3d at
876-77. Although this court denied relief in
each case, these rulings have never placed the
State's proportionality review completely
outside fourteenth amendment protection.
The majority seems to
overlook the arbitrariness step in its analysis,
but focuses instead on often-quoted language
that "[w]e cannot look behind the Missouri
Supreme Court's conclusion or consider whether
that court misinterpreted the Missouri statute
requiring proportionality reviews." Williams, 82
F.3d at 785 (citing LaRette, 44 F.3d at 688),
quoted in Op. at 627; see also Six, 94 F.3d at
478. We must place this language in proper
context. In Walton v. Arizona, 497 U.S. 639, 110
S.Ct. 3047, 11 L.Ed.2d 511 (1990), the Supreme
Court noted that "the Arizona Supreme Court
plainly undertook its proportionality review in
good faith and found that Walton's sentence was
proportional to the sentence imposed in cases
similar to his. The Constitution does not
require us to look behind that conclusion." Id.
at 656 (emphasis added).
LaRette and subsequent cases
quote Walton without noting that the Supreme
Court determined that the state court acted in
good faith before discussing the limitations of
constitutional scrutiny. See LaRette, 44 F.3d at
688; see also Six, 94 F.3d at 478; Williams, 82
F.3d at 784. A careful reading of these cases
reveals, however, that before reiterating the
mantra incompletely carved from Walton, this
court found that each defendant "was not
arbitrarily denied his state-provided right to
proportionality review." Six, 94 F.3d at 478 (emphasis
added); see also Williams, 82 F.3d at 785.
Significantly, Six cited Eighth Circuit
precedent recognizing that a state's
proportionality review remains subject to the
fourteenth amendment's protections. See Six, 94
F.3d at 478 (citing Foster, 39 F.3d at 882).
Thus, we have never abandoned
the notion that the fourteenth amendment
requires the Missouri Supreme Court to conduct
its proportionality review in good faith. Before
mechanically refusing to "look behind" the
Missouri Supreme Court's conclusion, we must
first ensure that Bannister was not arbitrarily
denied his state-provided right to
III. Cases Omitted from
Missouri Supreme Court's Data Base Demonstrate
Disproportionality of Death Penalty.
According to the Missouri
Supreme Court, "The issue in proportionality
review is 'not whether any similar case can be
found in which the jury imposed a life sentence,
but rather, whether the death sentence is
excessive or disproportionate in light of
similar cases as a whole.'" State v. Parker, 886
S.W.2d 908, 934 (Mo. 1994)(en banc)(quoting
State v. Shurn, 866 S.W.2d 447, 468 (Mo. 1993)(emphasis
added), cert. denied, 115 S. Ct. 1827 (1995)).
State law requires a comparison of Bannister's
penalty to those "imposed in similar cases
considering the crime, the defendant, and the
strength of the evidence." State v. Bannister,
680 S.W.2d 141, 149 (Mo. 1984)(en banc); see Mo.
Rev. Stat. Section(s) 565.035.3(3).
The omission of life sentence
cases from the Missouri Supreme Court's data
bank prevented the court from considering
similar cases as a whole. The state supreme
court used four capital punishment cases in its
proportionality review of Bannister's sentence,
all of which offer only superficial similarities
to Bannister's case.
See State v. Bannister, 680 S.W.2d at 149 (citing
State v. Gilmore, 661 S.W.2d 519 (Mo. 1983);
State v. McDonald, 661 S.W.2d 497 (Mo. 1983);
State v. Stokes, 638 S.W.2d 715 (Mo. 1982);
State v. Blair, 638 S.W.2d 739 (Mo. 1982)). Most
significantly, only one of the four cases
concerned a contract killing. See Blair, 638 S.W.2d
The Missouri Supreme Court's
data base omitted at least four life
imprisonment cases strikingly similar to
Bannister's. See State v. White, 621 S.W.2d 287
(Mo. 1981); State v. Chandler, 605 S.W.2d 100 (Mo.
1980); State v. Garrett, 595 S.W.2d 422 (Mo.
1980); State v. Flowers, 592 S.W.2d 167 (Mo.
1979). First, these cases are more similar to
Bannister's than the four used by the state
supreme court because these omitted cases
concern contract killings. See White, 621 S.W.2d
at 289; Chandler, 605 S.W.2d at 105; Garrett,
595 S.W.2d at 426; Flowers, 592 S.W.2d at 168.
The state supreme court's failure to consider
these similar cases negates any claim that it
considered similar cases "as a whole." Second,
comparison of Bannister's case to the omitted
cases reveals the apparent disproportionality of
Bannister's death sentence.
Furthermore, when considering
all eight cases as a whole, the
disproportionality of Bannister's death sentence
becomes more troubling. Thus, if the data base
had included these life imprisonment cases, the
state supreme court should have recognized the
disproportionality of Bannister's sentence.
Omission of these cases from the data base
rendered the State's proportionality review an
arbitrary exercise and a denial of Bannister's
The eyes of the world are
fixed on this case. The briefs of amici curiae
filed by The Lyon (France) Bar Association
Commission for the Defense of Human Rights,
Maastricht Centre for Human Rights and the
International Centre for Criminal Law and Human
Rights, as well as Steven Trombley's documentary
file about Bannister attest to the international
and national attention to this case.
Consequently, this case will serve as a window
through which others will judge the merits of
the judicial system in the State of Missouri and
federal civil review by petition for writ of
Several of Bannister's
allegations go to the heart of our perceptions
of fundamental fairness in the criminal justice
system: the right to be free from governmental
interrogation after receiving appointed counsel,
Michigan v. Jackson, 475 U.S. 625 (1986); the
right to a competent attorney during trial,
Strickland v. Washington,
466 U.S. 214 (1988); Powell v.
Alabama, 287 U.S. 45 (1932); and the right to a
competent attorney during sentencing, Mempa v.
Rhay, 389 U.S. 128 (1967); Townsend v. Burke,
334 U.S. 736 (1948).
As discussed in the
majority's opinion, procedural barriers prevent
this court from addressing several of
Bannister's claims. These roadblocks, I
emphasize, are procedural and in no way reflect
on the merits of Bannister's claims. If these
issues remain unaddressed, Missouri may execute
a man without offering him a fair trial or
competent legal representation. Because this
court cannot address those issues on their
merits, we must rely on other authorities--either
the United States Supreme Court or, if not, the
Governor of Missouri--to review the record and
address Bannister's contentions.
Notwithstanding bars to
federal review by this court of certain claims
by Bannister mentioned in the preceding
paragraph, I believe this federal court should
declare that any execution must await a fair
proportionality of sentence review by Missouri
courts. Accordingly, I would remand this case to
the district court to grant appropriate relief,
unless and until within a reasonable time
Bannister is afforded a proportionality review
of his sentence by the Missouri Supreme Court
using a full data base.
In this case, Bannister does
not allege that he was incapable of possessing
the requisite intent, as did petitioner in Jones,
but only alleges that he did not possess the
intent. In Pitts v. Norris, 85 F.3d 348, 350
(8th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct.
403, 136 L.Ed.2d 317 (1996), petitioner, who had
been convicted of capital felony murder arising
from a kidnapping, raised an argument somewhat
similar to the one Bannister now raises. In
Pitts, the petitioner conceded that he had
murdered his kidnap victim, but argued that he
was innocent of capital felony murder because he
intended to murder the victim from the beginning
and thus lacked an independent intent to commit
the underlying kidnapping, as the state statute
required. We held that his argument was as one
of legal not factual innocence and observed that
even if petitioner were "right, convicting him
is not a fundamental miscarriage of justice by
any stretch of the imagination." Id. at 351.
Arresting officers twice
advised [Bannister] of his Miranda rights and
made no attempt to question him. At 5:40 a.m. on
August 22, at the Joplin City Jail, [Bannister]
again received Miranda warnings. At that time,
he refused to sign a waiver form, indicating his
desire to wait for an attorney. The questioning
ceased. Later, [Bannister] volunteered certain
information to officers, including the alias he
used at the motel. En route to the Newton County
jail, [Bannister] inquired as to the possible
punishment for capital murder, expressed regret
that he left 'his own profession' of 'robbing
banks at which he never got caught,' and
speculated about FBI involvement in the current
investigation. At 6:30 a.m., following his
arrival at the jail, [Bannister] asked to speak
to the person in charge. Officers took [Bannister]
to the sheriff [Joe Abramowitz], who declined to
talk with [Bannister], but invited him to make a
telephone call and advised him to tell the truth.
[Bannister] initiated each of these contacts
without prompting by the police officers.
State v. Bannister, 680 S.W.2d
In Bannister I, 4 F.3d at
1439, we indicated that a state court
determination of initiation was subject to a
section 2254(d) presumption of correctness.
However, in light of Thompson v. Keohane, 116 S.
Ct. 457 (1996), that statement may no longer be
valid. In Thompson, id. at 465, the Supreme
Court noted that the courts of appeal were split
on whether a state court determination that a
defendant was "in custody" for Miranda purposes
was subject to a presumption of correctness. The
Court held that although the presumption applied
to state court findings on the "sceneand action-setting
questions[,]" de novo review was required for
the "ultimate inquiry" of whether a person was
in custody for Miranda purposes. Id. at 465. See
Feltrop v. Bowersox, 91 F.3d 1178, 1180 (8th
Cir. 1996). Because Bannister has never
contested that his statements on August 22
constituted initiation, in this appeal, we need
not resolve the correct standard of review of a
state court initiation determination. However,
assuming de novo review is required, applying
the presumption to the "sceneand action-setting"
findings, Thompson, 116 S. Ct. at 465, it is
clear that Bannister's statements on August 22 "evince[d]
a willingness and a desire for generalized
discussion about the investigation" and thus
constituted initiation. Oregon v. Bradshaw, 462
U.S. at 1045-46 (plurality opinion).
At 10:30 a.m. on August 23, [Bannister]
met with the sheriff and two officers at which
time they advised him of his Miranda rights. [Bannister]
stated he understood his rights and wanted to
talk, and signed a written waiver. During
conversations that followed Bannister recounted
numerous details of the crime. At [Bannister's]
suggestion, he accompanied officers to the scene
of the murder, where he continued his commentary
on the events prior to and immediately following
the shooting. During this time, officers
reminded [Bannister] that he did not have to
cooperate, but he responded that he wanted to
talk. Upon their return to the sheriff's office,
officers permitted [Bannister] telephone calls
and again read him his Miranda rights. [Bannister]
then gave officers an account of the crime from
its inception to [his] arrest. Although [Bannister]
initially used the third person in describing
events and never stated he shot Reustman, the
extent and detail of the information he provided
leaves little doubt of his guilt. Other than the
occasional mention of pain from a past injury, [Bannister]
did not appear to be in pain during the
questioning, did not request immediate medical
care or move to halt the interview, and there is
no evidence of physical or psychological
State v. Bannister, 680 S.W.2d
In addition, the defendants
in the other cases committed several deadly acts
to ensure the death of their victims while
increasing their suffering. See Gilmore, 661 S.W.2d
at 522 (shot victim twice to ensure death);
McDonald, 661 S.W.2d at 500-01 (shot wounded
victim again to ensure death); Stokes, 638 S.W.2d
at 724 (beat victim, repeatedly stabbed her,
used apron to strangle, and strangled her
manually causing death); Blair, 638 S.W.2d at
744 (bludgeoned victim with brick and shot her
Finally, Bannister's crime
differed from these cases based on the victims'
characteristics. See Gilmore, 661 S.W.2d at
521-22, 525 (killing 83-year-old woman to
prevent her from making identification);
McDonald, 661 S.W.2d at 507 (killing police
officer); Blair, 638 S.W.2d at 759-60 (noting
that crime represented "not just a contract
killing, but . . . kill[ing] the victim of and
sole witness to another crime (rape) to prevent
her from testifying. Such a murder strikes at
the heart of the administration of justice. . .
. It is difficult to conceive of a crime more
inimical to our society . . . .").
Furthermore, the defendants
in the cases used in the proportionality review
demonstrated more callousness and brutality
during the commission of their crimes than
Bannister. See Gilmore, 661 S.W.2d at 522 (noting
victim suffered and pleaded for mercy,
defendant's decision to prey on elderly,
defendant's constant mockery of victim's last
words, and defendant's bragging about murder to
relatives, "seemingly deriving an almost sensual
joy from telling of the crime"); Stokes, 638 S.W.2d
at 724 (describing injuries consistent with
prolonged struggle by victim); McDonald, 661 S.W.2d
at 500 (noting defendant's attack in front of
victim's daughter); Blair, 638 S.W.2d at 758-59
(noting defendant took part in terror campaign
against victim, ignored victim's pleas for mercy
and demonstrated no remorse). In addition, two
of the other defendants committed previous
homicides. See Gilmore, 661 S.W.2d at 523 (noting
defendant's confession to another dual murder);
Stokes, 638 S.W.2d at 724 (noting prior homicide
Finally, the evidence against
the other defendants carried more constitutional
reliability. The evidence in the four capital
punishment cases included witnesses, recorded
confessions following signed Miranda warnings,
and corroborating physical evidence. See Gilmore,
661 S.W.2d at 522; McDonald, 661 S.W.2d at 500;
Stokes, 638 S.W.2d at 718-19; Blair, 638 S.W.2d
In State v. Chandler, 605 S.W.2d
100 (Mo. 1980), the defendant stalked the victim
for several days eventually confronting the
victim in his office and robbing him. The
defendant's videotaped confession and testimony
before the grand jury detailed the victim's
pleas for mercy and the defendant's callousness
and brutality. See id. at 101, 106-07 & n.1.
In State v. Garrett, 595 S.W.2d
422, 425-26 (Mo. 1980), and State v. Flowers,
592 S.W.2d 167, 168 (Mo. 1979), the defendants
attacked and struggled with the victim in his
home, dragged him to the road, handcuffed him
and shot him in the head three times. Evidence
included recorded and videotaped confessions.
128 F.3d 621
Michael Bowersox, Respondent.
Circuits, 8th Cir.
October 10, 1997
Before WOLLMAN, Circuit Judge, BRIGHT and HENLEY,
Senior Circuit Judges.
HENLEY, Senior Circuit Judge.
Alan J. Bannister was convicted
by a jury in Missouri state court of capital murder
and sentenced to death. Bannister's execution is
currently scheduled for October 22, 1997, at 12:01
a.m. This court has twice before affirmed the denial
of his petitions for writs of habeas corpus.
Bannister v. Armontrout, 4 F.3d 1434 (8th Cir.1993),
513 U.S. 960 , 115 S.Ct. 418, 130 L.Ed.2d 333
(1994) (Bannister I); Bannister v. Delo, 100
F.3d 610 (8th Cir.1996), cert. denied, --- U.S.
----, 117 S.Ct. 2526, 138 L.Ed.2d 1026 (1997) (Bannister
II). Bannister now moves this court for permission
to file another successive federal habeas petition
pursuant to Section 106(b)(3)(B) of the Anti-Terrorism
and Effective Death Penalty Act of 1996, Pub.L. No.
104-132, 110 Stat. 1217 (1996) (AEDPA), codified as
28 U.S.C. 2244(b)(3)(B).
The AEDPA "changed the conditions
under which second or successive applications [for
federal habeas relief] may be considered and decided
on their merits." McDonald v. Bowersox, 125 F.3d
1183, 1184 (8th Cir.1997) (internal quotation). The
relevant section, 28 U.S.C. 2244(b), now provides:
(1) A claim presented in a
second or successive habeas corpus application under
[28 U.S.C.] section 2254 that was presented in a
prior application shall be dismissed.
(2) A claim presented in a
second or successive habeas corpus application under
[28 U.S.C.] section 2254 that was not presented in a
prior application shall be dismissed unless(A) the
applicant shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was
previously unavailable; or
(B)(i) the factual predicate
for the claim could not have been discovered
previously through the exercise of due diligence;
(ii) the facts underlying the
claim, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by
clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying
Bannister's motion sets forth the
following two issues:
(1) Whether in light of Trest
v. Cain, [94 F.3d 1005 (5th Cir.1996), cert granted,
--- U.S. ----, 117 S.Ct. 1842, 137 L.Ed.2d 1046
(1997) ], Bannister's Sixth Amendment Rights were
violated when the police interrogated him without
the presence of counsel.
(2) Whether the provision of
the [AEDPA] that completely precludes federal courts
from reviewing successive claims that were advanced
in a previous habeas corpus action is
In Bannister I, Bannister argued
that because he had been appointed counsel before he
confessed, the admission of the confession violated
his Sixth Amendment rights under Michigan v. Jackson,
475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986).
We refused to review the argument on the ground that
Bannister had first raised the argument in the
district court in a post-judgment motion under
We stated that "a Rule 59(e)
motion cannot be used to raise arguments which could,
and should, have been made before the trial court
entered final judgment" and noted that claims raised
in post-judgment motions could be considered abusive.
4 F.3d at 1440, 1445 (internal quotation omitted).
We also observed that the claim had not been raised
in the state court and that there was no record
support for Bannister's assertion that he had been
appointed counsel before the confession.
In Bannister II, "Bannister d[id]
not contest that he first raised the claim in the
Rule 59(e) motion, or that he failed to make a
record in the state court that he had been arraigned
and appointed counsel" before the confession. 100
F.3d at 621. Instead, he argued that the state had
waived procedural default and that this court
unfairly raised a procedural default sua sponte
without affording him the opportunity to establish
cause and prejudice.
The state responded that it did
not waive default, that a federal court could raise
procedural default sua sponte, and that, as a matter
of law, Bannister could not prove cause for his
failure to present his claim that he had been
appointed counsel before his confession. The state
went on to argue that, in any event, Bannister would
not be entitled to habeas relief under Michigan v.
Jackson by the nonretroactivity principles of Teague
v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d
334 (1989). Because we agreed with the state that
the Sixth Amendment claim was Teague-barred,
we did not address any default or abuse issues.
In the present motion, Bannister
attempts to avoid the section 2244(b)(1) bar to
again presenting his Sixth Amendment claim by
arguing the Supreme Court's decision in Trest v.
Cain "may" allow him to meet the "new rule"
requirements of subsection (b)(2)(A). His reliance
on subsection (b)(2)(A) is misplaced. The subsection
applies only to a claim "not presented in a prior
application," not to the same claim. In any event,
Bannister's Trest claim cannot meet the requirements
of subsection (b)(2)(A). Aside from the fact that
the Court has not yet decided Trest, the case does
not involve a "new rule of constitutional law." In
Trest, the Court granted certiorari to consider the
issue of whether a court of appeals may raise a
procedural default sua sponte.
In the context of a Teague new
rule analysis, which is instructive here, this court
has stated that "the 'new rule' principle applies to
rules of constitutional law which the states are
required to observe[,]" not to "the analysis to be
used in determining whether claims have been
procedurally defaulted." Charron v. Gammon, 69 F.3d
851, 856 (8th Cir.1995), cert. denied, --- U.S.
----, 116 S.Ct. 2533, 135 L.Ed.2d 1056 (1996). Thus,
Trest does not have the potential of meeting the "new
rule" requirements of subsection (b)(2)(A). Nor,
contrary to Bannister's assertion, does the claim
meet the requirements of subsection (b)(2)(B)
concerning newly discovered facts.
Bannister's motion for permission
to file a successive habeas petition is in effect a
request for a stay of execution pending the Supreme
Court's decision in Trest, which, if expressly
requested, we would deny. In fact, the present
motion is a recast of Bannister's motion to recall
the mandate pending resolution of Trest, which we
have previously denied.
We also note that the Supreme
Court has denied Bannister's petition for rehearing
from the denial of certiorari in Bannister II. In
the rehearing petition, Bannister mistakenly
asserted, as he does now, that Trest "will have a
controlling effect on the outcome of [his] habeas
petition." No matter what the Court holds in Trest
concerning procedural default, the holding will have
no effect on the outcome of Bannister's Teague-barred
Sixth Amendment claim first raised in a Rule 59(e)
In the alternative, Bannister
argues that section 2244(b)(1) is an
unconstitutional suspension of the writ of habeas
corpus. However, this court has already rejected the
argument that "the new law, if construed as a
blanket ban on same-claim successive petitions, is
unconstitutional as a suspension of the writ of
habeas corpus, in violation of Art. 1, Section 9,
Clause 2, of the Constitution." Denton v. Norris,
104 F.3d 166, 167 (8th Cir.1997) (footnote omitted).
Citing Felker v. Turpin, --- U.S. ----, ---- - ----,
116 S.Ct. 2333, 2339-40, 135 L.Ed.2d 827 (1996), we
explained that "[t]he statute is merely an
elaboration on traditional abuse-of-the writ
doctrine." Denton, 104 F.3d at 167.
We also noted that because "there
was no general federal habeas corpus jurisdiction
over persons in state custody until 1867[,] [i]t
would be strange indeed to hold that a mere
regulation of repetitious requests for relief
violates a clause of the original Constitution." Id.
We also reject Bannister's argument that section
2244(b)(1) raises a "serious constitutional question"
because it denies a "judicial forum for a colorable
constitutional claim." Webster v. Doe, 486 U.S. 592,
603, 108 S.Ct. 2047, 2053, 100 L.Ed.2d 632 (1988) (internal
quotation omitted). As just stated, the statute does
not preclude judicial review of an inmate's
constitutional challenges. Rather, it is "a mere
regulation of repetitious requests for relief."
Denton, 104 F.3d at 167.
Accordingly, we deny Bannister's
request to file a successive habeas petition. We
also deny his request for a stay of execution
pending resolution of a successive habeas petition.
In light of the pendency in the United States
Supreme Court of Trest v. Cain, this order, of
course, is without prejudice to Bannister's seeking
relief in that Court.