State of Missouri v.
Maurice Oscar Byrd
Cite as 676 SW 2d 494 (Mo.banc 1984)
Maurice Oscar Byrd was
executed on August 23, 1991
On October 23, 1980, employees arrived at the Pope’s Cafeteria in
the West County Shopping Mall to discover that three employees had
been killed and a fourth employee was still alive, although mortally
wounded. She had been shot in each eye and died a little more than a
week later. Over four thousand dollars had been taken from the
At the time of the murders, Maurice Byrd worked
for an exterminating service and the cafeteria was one of his
customers. On the morning of the killings, the bookkeeper for his
employer arrived at work and noticed that Byrd was already there
with another person, seated in a car that was different from the one
normally driven by him.
Byrd began his route that morning in the company
car but called in at 10 am to report that he was ill. He returned
the company car to his employer and left for the day. Byrd never
returned to work and made no attempt to pick up his final paycheck.
Byrd was convicted of four counts of capital
murder and sentenced to death on each count.
917 F.2d 1037
Paul DELO, Superintendent, State Correctional Facility at Potosi,
Attorney General of the State of Missouri, Appellees.
United States Court of Appeals,
Submitted April 12, 1990.
Decided Oct. 19, 1990.
Rehearing Granted Oct. 26, 1990.
Before McMILLIAN, ARNOLD and
BOWMAN, Circuit Judges.
McMILLIAN, Circuit Judge.
Maurice Oscar Byrd, a Missouri
death-row inmate, appeals an order of the United States District
Court for the
Eastern District of Missouri denying his second petition for a
writ of habeas corpus under 28 U.S.C. Sec. 2254. Byrd v. Delo,
733 F.Supp. 1334 (E.D.Mo.1990). In the alternative, Byrd
requests that his stay of execution be continued. For the
reasons discussed below, we affirm the order of the district
court and dissolve the stay of execution.
I. HABEAS CORPUS
This is Byrd's second habeas
petition. Byrd's claims fall into two broad categories: three
claims which were considered and rejected by this court in
Byrd's first action ("repetitive claims") and six claims which
were not raised in Byrd's first petition ("new claims").
A. REPETITIVE CLAIMS
The court may reconsider
habeas claims previously denied on the merits if the "ends of
justice" so require. Sanders v. United States, 373 U.S. 1, 16,
83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963) (Sanders). For
instance, reconsideration is appropriate if the petitioner has
shown "change in the law or some other justification for having
failed to raise a crucial point or argument in the prior
application," id. at 17, 83 S.Ct. at 1078, quoted in Williams v.
Lockhart, 862 F.2d 155, 158 (8th Cir.1988), or if there are "new
facts or legal developments warranting relitigation of the claim."
Williams v. Lockhart, 862 F.2d at 158.
In addition, at least one
panel of this Circuit has held that in order to relitigate
repetitive claims, a petitioner must also make "a colorable
showing of factual innocence." Williams v. Armontrout, 855 F.2d
578, 580 (8th Cir.1988), quoting Kuhlmann v. Wilson, 477 U.S.
436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986) (plurality);
see also Mercer v. Armontrout, 864 F.2d 1429, 1434 (8th
Cir.1988) (dictum). But cf. Wilson v. Lockhart, 892 F.2d 754,
756 (8th Cir.1990); Williams v. Lockhart, 862 F.2d at 158 (cases
declining either to adopt or to reject "factual innocence" test).
A requirement of "factual innocence" supplements rather than
supplants the "new factual/legal issues" development. See
Williams v. Lockhart, 862 F.2d at 157-58 ("factual innocence"
requirement imposes "additional burden" on petitioners).
On appeal, Byrd has raised
repetitive claims of ineffective assistance of counsel ("Ground
E" in his habeas petition), racially biased jury selection ("Ground
F") and denial of the right to offer evidence of mitigating
circumstances ("Ground H"). Each of these arguments will be
addressed in turn.
1. Ground E--Ineffective Assistance of
Ground E of Byrd's petition
alleges that his trial counsel erroneously and unreasonably
called Oscar Ford to testify on Byrd's behalf. Shortly after the
murder, Ford stated that he had seen three black men, one of
whom resembled a Mr. Kirksey, leave the location of the murders
(a shopping center) in a yellow car. Before the trial, Ford
recanted his earlier statements and stated that he had in fact
seen Byrd at the shopping center. At trial, Ford again testified
that he had seen Byrd at the time and place of the murders.
In our review of Byrd's first
petition, we held that counsel had "a reasonable basis for the
decision to call Oscar Ford." Byrd v. Armontrout, 880 F.2d 1
(8th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 1326, 108
L.Ed.2d 501 (1990). We held that counsel sought to introduce
Byrd's original statement to the police implicating Kirksey in
order to corroborate the testimony of Faraby Lombardo, who had
that she had seen three black men in a yellow
car in the neighborhood around 8:10 that morning. Such testimony
would clearly be exculpatory, since the state's own case had
included the testimony of a woman with whom Byrd worked that
Byrd was already at work around 7:50 that morning.
Id. at 5. Thus, we concluded,
it seemed reasonable "that counsel would decide to use Ford's
testimony to establish the 'yellow car' defense." Id.
In the instant petition, Byrd
argues that an intervening change in the law requires
reconsideration of Ground E. In Harris v. Reed, 894 F.2d 871
(7th Cir.1990) (Harris ), the district court found that the
failure of the petitioner's trial attorney to put on any
evidence in his client's defense did not constitute ineffective
assistance of counsel, because of the weakness of the
The Seventh Circuit found that
trial counsel "did not offer the strategic justifications
provided by the district court," id. at 878, and accordingly
reversed because "[j]ust as a reviewing court should not second
guess the strategic decisions of counsel with the benefit of
hindsight, it should also not construct strategic defenses which
counsel does not offer." Id. In sum, Harris stands for the
proposition that courts may not deny claims of ineffective
assistance of counsel based on justifications created by the
court rather than by counsel.
Byrd argues that Harris
requires reconsideration of his claim because this court
manufactured a "yellow car" defense which counsel did not offer
or intend to offer. We disagree. The record shows that trial
counsel said in his opening statement that "we'll introduce
testimony from Mr. Ford about what his original description was.
That he saw these individuals [none of whom was Byrd] leave in a
yellow car." (Trial Transcript at 713.) In addition, trial
counsel asked Ford about the "yellow car" theory at trial (Trial
Transcript at 738) and discussed the yellow car in his closing
statement (Trial Transcript at 941-42).
testimony at the state post-conviction relief hearing ("the
also addresses the "yellow car" defense. Counsel testified that
he called Ford to the stand to corroborate Lombardo's testimony
that on the morning of the murders:
she saw an automobile fitting the description
of the car Mr. Ford saw pull up on her street and a black man
exited the car and there were two other individuals in the car,
and that the black man placed a large bag in the trunk of a
large car and re-entered the car and left again.
Brief of Appellant at 32.
Counsel added that "I was assuming Mr. Ford would say that he
picked out Mr. Kirksey, and felt Faraby Anysia Lombardo would
say that was the same individual she saw on her street." Id.
Although counsel did not mention a yellow car in this portion of
his testimony, the passages cited clearly restate the "yellow
On the other hand, Byrd relies
on the following exchange from the Rule 27.26 hearing:
Q: But at the point in time Oscar Ford was on
the stand, the State had already suggested to the Court that, in
fact, the yellow Ford had nothing to do with the crime, is that
correct, another car was possibly used?
A: I don't recall, but I don't think anything
really pointed to the yellow Ford.
Q: Yet, as far as his testimony, he saw three
men near a yellow Ford?
A: I think another car, a green Plymouth,
Brief of Appellant at 33 (emphasis
in original). Byrd interprets this passage to mean that counsel
never sought to establish the "yellow car" theory. In light of
the testimony cited above, other interpretations are equally
plausible. For instance, Aylward might have questioned the truth
of the "yellow car" theory after the trial, or might have merely
been describing the prosecution's theory. Neither possibility,
however, forecloses a finding that the "yellow car" theory was
used at the time of trial.
In sum, we reiterate our view
that counsel sought to use the "yellow car" defense at trial and
sought to use Ford's initial identification to corroborate
Lombardo's testimony. Thus, we did not improperly "construct
strategic defenses which counsel does not offer," Harris, 894
F.2d at 878, and Byrd cannot point to any new legal developments
supporting reconsideration of Ground E.
2. Ground F--Racially Biased Jury Selection
Byrd was convicted by a all-white
jury and has relied on various legal theories to support his
claim that the prosecution unconstitutionally kept blacks off
In his Rule 27.26 petition,
Byrd relied on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,
90 L.Ed.2d 69 (1986) (Batson), which prohibited prosecutors from
using peremptory strikes to create an all-white jury. Batson
overruled Swain v. Alabama, 380 U.S. 202, 223-24, 85 S.Ct. 824,
837-38, 13 L.Ed.2d 759 (1965) (Swain), which allowed prosecutors
to use peremptory strikes to create an all-white jury in
individual cases, as long as they did not systematically keep
blacks off juries.
The state courts rejected this
claim, based on Allen v. Hardy, 478 U.S. 255, 258, 106 S.Ct.
2878, 2880, 92 L.Ed.2d 199 (1986) (Allen ) (holding that Swain
test still applies to pre-Batson trials, because (1) decisions
such as Batson, which overrule precedent, are generally not
applied retroactively, (2) Batson rule, unlike other rules which
have been applied retroactively, serves ends other than
integrity of jury factfinding, (3) prosecutors and judges have
relied on Swain, and (4) retroactive application of Batson would
seriously disrupt the administration of justice), and held that
the Swain "systematic exclusion" test governed Byrd's claim. See
Byrd v. State, 723 S.W.2d 37, 42 (Mo.App.) (applying Allen ),
cert. denied, 484 U.S. 872, 108 S.Ct. 203, 98 L.Ed.2d 155
In his first petition, Byrd
requested discovery to ascertain whether blacks had been
systematically excluded from St. Louis County juries. The
district court denied Byrd's discovery request, and we held on
appeal that the district court "properly denied Byrd's discovery
request ... [because] Byrd has offered no cause for his failure
to present evidence in support of his Swain claim to the state
courts, as he must to overcome the procedural bar created by
that failure." Byrd v. Armontrout, 880 F.2d at 7; see also
Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594
(1977) (where habeas petitioner has failed to raise his claim in
state courts, he has committed "procedural default" and must
show cause for default and prejudice from constitutional
violation to avoid procedural bar). We then denied Byrd's Swain
claim on the merits, because the evidence was "insufficient to
warrant relief under Swain." Byrd v. Armontrout, 880 F.2d at 7.
In his second petition, Byrd
argues that he had good cause for failing to raise his Swain
claim in state court, because Allen had not been decided until
one day before his Rule 27.26 brief was filed. In our decision
denying Byrd's first petition, we considered and rejected this
argument. See Byrd v. Armontrout, 880 F.2d at 7 n. 6.
Byrd also claims that the
procedural default doctrine is inapplicable because the Missouri
courts in fact addressed his Swain challenge on the merits. The
district court held that reconsideration of this claim was
inappropriate because "[p]etitioner alleges no new factual
evidence. He does not allude to some intervening change in the
law. He simply disagrees with this Court's determination that a
Swain claim was procedurally barred." Byrd, 733 F.Supp. at 1338
(E.D.Mo.1990). As petitioner has raised no new arguments, we
agree. See Williams v. Lockhart, 862 F.2d at 158 (new "facts or
legal developments" must be raised).
3. Mitigating Evidence of Good Character--Ground
At trial, counsel informed the
state trial court that he planned to offer the testimony of a Mr.
Coble that Byrd had been nominated for a good citizenship award
in connection with assistance he had given the police in
investigating a burglary. The court ruled that if the defense
called Coble, the state would be allowed to cross-examine him
about his knowledge of evidence of Byrd's bad character (such as
Byrd's arrest records). As a result, defense counsel declined to
call Coble as a witness.
In Ground H of his second
petition, Byrd claimed that the trial court's ruling allowing
cross-examination violated his right to present evidence of
mitigating circumstances, because the ruling "left him with a 'Hobson's
choice' and constructively denied him the opportunity to present
all mitigating evidence." Byrd v. Delo, 733 F.Supp. at 1338.
We initially rejected Byrd's
argument because allowing impeachment of witnesses is simply not
identical to exclusion of such witnesses. See Byrd v. Armontrout,
880 F.2d at 11.
Byrd now argues that if the
prosecutor's impeachment of a character witness concerns matters
beyond the proper scope of cross-examination, the defendant's
right to introduce evidence of mitigating circumstances has been
unconstitutionally "chilled" if the mitigating evidence was not
introduced. Reply Brief of Appellant at 12-13 (hereinafter "Reply
As noted above,
reconsideration of repetitive claims is appropriate only where
the petitioner has shown the existence of newly discovered
evidence, an intervening change in the law, or some other
persuasive reason for his or her failure to raise new arguments
earlier. Instead, Byrd has merely restated arguments which have
been made and rejected by this court and which were based on
well-settled law. See Byrd v. Armontrout, 880 F.2d at 11; see
also Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d
973 (1978) (jury must be allowed to consider mitigating
circumstances). Thus, there is no reason why Byrd should be able
to relitigate Ground H on the merits, and we accordingly affirm
the district court's denial of that claim.
B. NEW CLAIMS
Byrd also raised six new
claims in his second habeas petition, including: (1)
introduction of illegally obtained testimony ("Ground B"); (2)
perjured testimony by a prosecution witness ("Ground C"); (3)
failure to disclose exculpatory evidence ("Ground D"); (4) two
claims alleging unconstitutional jury instructions ("Ground A"
and "Ground G"); and (5) a claim that the infliction of capital
punishment in this case is disproportionate ("Ground I").
When a second habeas petition
raises claims not raised in the first petition, "full
consideration of the merits can be avoided only if there has
been an abuse of the writ." Sanders, 373 U.S. at 17, 83 S.Ct. at
1078. Whether a habeas claim is "abusive" is governed by the
"cause and prejudice" standard governing allegations of
See Smith v. Armontrout, 888 F.2d 530, 541 (8th Cir.1989) (abusiveness
determined by "cause and prejudice" test); see also Wainwright,
433 U.S. at 87-91, 97 S.Ct. at 2506-09 (applying "cause and
prejudice" test to procedural default).
An allegedly abusive claim may
not be entertained unless the petitioner can show (1) cause
sufficient to excuse the failure to raise the claim earlier,
Smith v. Armontrout, 888 F.2d at 541, and (2) prejudice
resulting from the alleged deprivation of constitutional rights.
Such prejudice occurs if, absent the alleged violations, "the
factfinder would have had a reasonable doubt regarding guilt."
Byrd v. Delo, 733 F.Supp. at 1339; see also Dalton v. United
States, 862 F.2d 1307, 1310 (8th Cir.1988).
Even if the "cause and
prejudice" test is not met, a petitioner's claim may be
considered on the merits if he or she can show that newly
discovered evidence would cause his or her acquittal on retrial,
or that he or she is innocent. See Murray v. Carrier, 477 U.S.
478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986) (Murray )
("cause and prejudice" test inapplicable where the alleged "constitutional
violation has probably resulted in the conviction of one who is
actually innocent."); Mastrian v. McManus, 554 F.2d 813, 823
(8th Cir.) (Mastrian ), cert. denied, 433 U.S. 913, 97 S.Ct.
2985, 53 L.Ed.2d 1099 (1977) (newly discovered evidence
justifies habeas relief if it "would probably produce an
acquittal on retrial").
Byrd initially argues that we
should not consider the question of abusiveness because the
state did not plead abuse of the writ before the district court.
Brief of Appellant at 19, 38. See also Sanders, 373 U.S. at
10-11, 83 S.Ct. at 1074-75 ("the burden is on the Government to
plead abuse of the writ"). We disagree. The record demonstrates
that in its response to Byrd's motion for stay of execution, the
only major document filed by the state in district court, the
state specifically described each of Byrd's new claims as "abusive,"
Suggestions in Opposition to Application for Stay of Execution
at 2-3, and argued that "[Byrd's] claims constitute an abuse of
writ, [and] are procedurally defaulted." Id. at 2-3.
Accordingly, we will address each of Byrd's new claims below.
1. Illegally Obtained
At trial, O.C. Green and James
Mydell testified that while they were imprisoned in Georgia,
Byrd told them that he committed the crimes at issue. In Ground
B of his second petition, Byrd alleges that Green and Mydell
were government "plants" and that therefore their testimony
should have been excluded. See Massiah v. United States, 377 U.S.
201, 202-03, 84 S.Ct. 1199, 1200-01, 12 L.Ed.2d 246 (1964) (where
defendant made incriminating statements to fellow narcotics
dealer who was cooperating with authorities, statements excluded
as violation of Sixth Amendment). The district court denied this
claim on the grounds that (1) Byrd has shown no cause for
failing to raise this claim in his first petition, (2) he has
not shown that the "actual innocence" exception applies, and (3)
his substantive claim is without merit. See Byrd v. Delo, 733
F.Supp. at 1340-41.
On appeal, Byrd argues that
the "actual innocence" exception to the abusiveness doctrine
applies to this case. The district court adequately responded to
this claim by stating that "even without the testimony of Green
and Mydell, [Byrd's] confession to his second wife as well as
significant circumstantial evidence ... provide an adequate
basis for establishing [Byrd's] guilt." Id. at 1341. We agree
and therefore hold that Byrd was not prejudiced by the admission
of the testimony of Green and Mydell and that the actual
innocence exception is also inapplicable.
2. Perjury--Ground C
At trial, O.C. Green testified
that he had made no deals with prosecutors. In fact, Green had
made a plea agreement with authorities in Georgia, which
provided that the state would "drop pending armed robbery and
murder charges against Green in return for Green's testimony
with respect to charges pending against petitioner in Georgia."
In Ground C of his second
petition, Byrd argues that because Green perjured himself
regarding his plea agreement with Georgia authorities, habeas
relief is appropriate. The district court held that Byrd was not
prejudiced by Green's perjury, because "absent the testimony of
Green ... the state presented sufficient evidence of
petitioner's guilt." Id.
We assume for the purposes of
this analysis that Byrd demonstrated cause for his failure to
raise Ground C in his first petition, because "the information
concerning the charges dropped about O.C. Green came to
counsel's attention only after the filing of his initial habeas
application in 1987." Brief of Appellant at 25. We agree with
the district court, however, that Byrd has not established
prejudice arising out of Green's perjured testimony. Even
without Green's testimony, Byrd's confessions to Mydell and his
second wife, as well as significant circumstantial evidence,
support the jury's verdict. For the same reason, Byrd cannot
obtain relief under the "actual innocence" exception to the
"cause and prejudice" rule.
Finally, Byrd may not obtain
relief under the newly discovered evidence exception because
newly discovered evidence justifies habeas relief only if it
would "produce an acquittal on retrial." Mastrian, 554 F.2d at
823. For the reasons stated above, we hold that exclusion of
Green's testimony or exposure of his perjury would not produce
an acquittal on retrial.
3. Failure to Disclose
Exculpatory Evidence--Ground D
In Ground D of his second
petition, Byrd alleges that law enforcement authorities failed
to disclose numerous items of exculpatory evidence, including
reports suggesting that numerous persons saw a maroon Cadillac
near the murder scene on the morning of the crime, a confession
by another person, and the existence of numerous keys at the
murder scene, none of which belonged to Byrd. In addition, Byrd
notes that the police discovered numerous fingerprints at the
murder scene, but did not reveal to whom they belonged. See
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963) (requiring disclosure of exculpatory evidence).
The district court rejected
Byrd's claim because Byrd "utterly fail[ed] to offer an
explanation as to why these arguments were not raised in earlier
petitions," Byrd v. Delo, 733 F.Supp. at 1341, and "had [the
evidence] been presented at trial, this Court cannot conclude
that the factfinder would have a reasonable doubt with respect
to guilt." Id. at 1342.
On appeal, Byrd excuses his
failure to raise this issue in his first petition on the grounds
that "much information was not given to Byrd's habeas counsel
until after the prior petition for habeas had progressed." Brief
of Appellant at 39 (emphasis added).
Byrd's brief does not specify, however, which evidence was
disclosed before the first petition was filed and which had been
disclosed more recently.
Assuming arguendo that good
cause exists for Byrd's failure to file his exculpatory evidence
claim, we agree with the district court's holding that he has
not carried his burden of establishing prejudice or actual
innocence. See Smith v. Armontrout, 888 F.2d at 540 (if the
state pleads abuse of writ as a defense, "the burden is on
petitioner to establish that the defense is without merit").
Byrd has not made any effort to show how specific items of
previously undisclosed evidence prove his innocence, or how
their exclusion helped the prosecution show guilt. Thus, we
simply cannot ascertain to what extent, if any, Byrd's case was
prejudiced by the alleged failure to disclose exculpatory
evidence, or how the allegedly withheld evidence proves his
Accordingly, we affirm the
district court's denial of Ground D.
4. Jury Instructions--Grounds A and G
In Grounds A and G of his
second petition, Byrd challenges these instructions:
In determining the punishment to be assessed
under Count IV against the defendant for the murder of Judy
Cazaco, you must first unanimously determine:
1. Whether the murder of Judy Cazaco was
committed while the defendant was engaged in the commission of
the capital murders of James Wood, Edna Ince and Carolyn Turner.
2. Whether the defendant murdered Judy Cazaco
for the purpose of receiving money or anything of monetary value.
You are further instructed that the burden
rests upon the state to prove beyond a reasonable doubt at least
one of the foregoing circumstances, and that it is an
aggravating circumstance. The defendant is not required to prove
or disprove anything.
Therefore, if you do not unanimously find
from the evidence beyond a reasonable doubt that at least one of
the foregoing circumstances exist and that it is an aggravating
circumstance, you must return a verdict fixing the punishment of
the defendant at imprisonment for life by the Division of
Corrections without eligibility for probation or parole until he
has served a minimum of fifty years of his sentence.
If you find and believe from the evidence
beyond a reasonable doubt that one or more of the circumstances
submitted in Instruction Nos. 51, 52, 53, 54 exists and that at
least one of them is an aggravating circumstance, it will then
become your duty to decide whether a sufficient aggravating
circumstance or circumstances exist to warrant the imposition of
death as punishment of defendant. In deciding that question you
may consider all of the evidence relating to the murders of
James Wood, Edna R. Ince, Carolyn Turner and Judy Cazaco.
You may also consider any of the aggravating
circumstances referred to in Instruction Nos. 51, 52, 53, 54
which you found beyond a reasonable doubt.
If you do not unanimously find from the
evidence beyond a reasonable doubt that a sufficient aggravating
circumstance or circumstances exists to warrant the imposition
of death as defendant's punishment, you must return a verdict
fixing his punishment at imprisonment for life by the Division
of Corrections without eligibility for probation or parole until
he has served a minimum of fifty years of his sentence.
If you decide that a sufficient aggravating
circumstance or circumstances exist to warrant the imposition of
death, as submitted in Instruction No. 51, it will then become
your duty to determine whether a sufficient mitigating
circumstance or circumstances exist which outweigh such
aggravating circumstance or circumstances so found to exist. In
deciding that question you may consider all of the evidence
relating to the murder of James Wood.
You may also consider:
1. Whether the defendant has no significant
or prior criminal activity.
2. The age of the defendant at the time of
You may also consider any circumstances which
you find from the evidence in extenuation or mitigation of
punishment. If you unanimously decide that a sufficient
mitigating circumstance or circumstances exist which outweigh
the aggravating circumstance or circumstances found by you to
exist, then you must return a verdict fixing defendant's
punishment at imprisonment for life by the Division of
Corrections without eligibility for probation or parole until he
has served a minimum of fifty years of his sentence under Count
Even if you decide that a sufficient
mitigating circumstance or circumstances do not exist which
outweigh the aggravating circumstance or circumstances found to
exist, you are not compelled to fix death as the punishment.
Whether that is to be your final decision rests with you.
Byrd v. Delo, 733 F.Supp. at
a. Instructions 56-59--Ground A
In Ground A of his second
petition, Byrd argues that Instructions 56-59 unconstitutionally
"prohibited the jury from considering mitigating evidence unless
such circumstances were unanimously found to exist." Byrd v.
Delo, 733 F.Supp. at 1343. The district court rejected this
claim as abusive and as without substantive merit. Id. at
On appeal, Byrd argues that
the "actual innocence" exception of Murray requires habeas
relief in this case.
This doctrine is applicable to sentencing if, had the jury had
been properly instructed, it would not have sentenced petitioner
to death. Gilmore v. Delo, 908 F.2d 385, 387 (8th Cir.1990),
aff'g No. 89-1167(C)(2), slip op. at, 1989 WL 109554 (E.D.Mo.
June 20, 1989) (Gilmore ).
Byrd concedes that in Gilmore,
the district court held that "this very instruction" was
constitutional. Brief of Appellant at 14 n. 11.
On appeal, the Gilmore court declined to reach the merits, and
instead affirmed the denial of habeas relief based on the "abuse
of the writ" defense. Gilmore, 908 F.2d at 386-87. The Gilmore
petitioner, like Byrd, sought to bring himself within the
"actual innocence" exception to the abusiveness doctrine. We
rejected this argument and held that the petitioner would have
been sentenced to death even if the jury had been properly
instructed. The court so held for two reasons. First, the jury
had found several aggravating circumstances, including two other
murders, numerous prior criminal convictions, and the fact that
the murder was for the purposes of receiving money and
preventing the victim from testifying. Id. at 387. Similarly,
multiple aggravating circumstances existed in this case. See
State v. Byrd, 676 S.W.2d 494, 498, 507 (Mo.1984) (banc) (murders
committed in commission of other capital murders and for purpose
of receiving money, and Byrd "commended the practice of either
killing or incapacitating robbery victims ... to prevent them
from testifying"), cert. denied, 469 U.S. 1230, 105 S.Ct. 1233,
84 L.Ed.2d 370 (1985).
Second, the evidence of
mitigating circumstances in Gilmore was quite weak. The only
mitigating evidence consisted of one witness who testified that
the petitioner had been abused as a child, another who testified
that the petitioner was "borderline mentally retarded," and the
petitioner's own testimony that at the time of the murder he was
an alcoholic and a drug abuser. Gilmore, 908 F.2d at 387-88.
Byrd's trial counsel presented four witnesses. One of the
witnesses was Byrd's mother, who testified that Byrd's father
died when he was very young and that Byrd was a Korean War
veteran. The other three witnesses cited in Byrd's brief, James
Gilsinan, Steven Puro, and Father Francis Cleary, criticized the
death penalty generally without discussing Byrd himself. Thus,
Byrd's mitigating evidence is as weak, if not weaker, than that
of the petitioner in Gilmore.
In sum, we hold that the
actual innocence exception, as it applies to the penalty phase,
does not apply because Byrd would have been sentenced to death
even if the jury had been instructed differently. See Gilmore,
908 F.2d at 387.
Accordingly, we affirm the
district court's denial of Ground A.
b. Instructions 54-56--Ground G
In Ground G of his second
petition, Byrd claims that Instructions 54-56 unconstitutionally
required him to prove mitigating circumstances beyond a
reasonable doubt, or were at least so confusing that a reviewing
court could not determine whether the jury reached its
conclusion on the basis of an unconstitutional understanding.
The district court rejected this claim as an abuse of the writ
and on the merits. Byrd v. Delo, 733 F.Supp. at 1344-45.
On appeal, Byrd makes the same
procedural argument which we rejected in our discussion of
Ground A, i.e., that the actual innocence exception should apply
because Byrd would not have been sentenced to death if the jury
had been properly instructed.
As noted in our discussion of
Ground A, the evidence of multiple aggravating circumstances was
compelling and Byrd's evidence of mitigating circumstances is
weak. We therefore hold that the actual innocence exception, as
it applies in the penalty phase, does not apply because Byrd
would have been sentenced to death even if the jury instructions
had been less confusing.
5. Proportionality--Ground I
In Ground I of his second
petition, Byrd claims that his death sentence is
disproportionate when compared with those of similar offenders.
Byrd states that he did not raise this claim in his first
petition because he only recently discovered evidence that the
Missouri Supreme Court had based its proportionality review of
his sentence on inaccurate information. Under Missouri law, the
Missouri Supreme Court's staff is required to prepare a synopsis
of "all cases in which a sentence of death or life without
parole was imposed after May 26, 1977." Brief of Appellant at
19. Byrd claims that the Missouri Supreme Court's records are
incomplete and inaccurate, and that the court therefore "could
not have engaged in the required proportionality review." Id. at
Where, as here, the
petitioner's claim is based on newly discovered evidence, the
"cause and prejudice" test is inapplicable. Instead, the court
must determine whether the newly discovered evidence would have
resulted in an acquittal or a lesser sentence on retrial. See
Mastrian, 554 F.2d at 823. As noted above, Byrd's crimes and the
evidence at trial were quite similar to those in Gilmore and
other cases where the death penalty has been imposed. Cf. State
v. Gilmore, 661 S.W.2d 519, 525 (Mo.1983) (banc) (citing similar
cases), cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d
476 (1983). The court therefore finds that a more comprehensive
database would not have changed the Missouri Supreme Court's
holding that his death sentence was "not disproportionate to the
penalty imposed in similar cases, considering both the crime and
the defendant." State v. Byrd, 676 S.W.2d at 507.
In the alternative, Byrd
argues that because he has not yet exhausted his state remedies
by filing a state habeas petition under Missouri Supreme Court
Rule 91 ("Rule 91 petition"), the court should continue its stay
of execution pending the disposition of such a petition.
As Byrd notes, a stay of
execution is generally appropriate where a petitioner has failed
to exhaust state remedies. See, e.g., Shaw v. Martin, 613 F.2d
487 (4th Cir.1980); Fletcher v. Armontrout, 733 F.Supp. 1348 (W.D.Mo.1990)
(granting stay, and rejecting view that abolition of Rule 27.26
repealed state habeas remedy). On the other hand, Rule 27.26 and
Rule 91 both incorporate relevant constitutional law. Thus, a
stay in this case might well be futile.
As the Missouri courts enacted
both Rule 27.26 and Rule 91, they should decide the proper
relationship between these two rules. Thus, the court must
decide whether continuing the stay would make it any easier for
the Missouri courts to resolve this question.
If we dissolve our stay, Byrd
can still request a stay from the Missouri courts, and go on to
litigate his Rule 91 claim if the stay is granted. It follows
that it would be pointless for us to continue our stay, because
the relationship between Rule 27.26 and Rule 91 can be addressed
by the Missouri courts whether the stay is continued or
dissolved. Accordingly, we will dissolve the stay of execution.
In sum, we affirm the district
court's denial of Byrd's habeas petition and dissolve our stay
We are grateful to and
compliment appointed counsel for their zealous and effective
representation of Byrd. Their performance has been exemplary.
ON PETITION FOR REHEARING AND STAY OF
The panel has granted a
rehearing and the application for stay of execution. Judge
Bowman dissents from that grant of rehearing by the panel. The
date of execution set by the Missouri Supreme Court is hereby
stayed until further order of this court. The petition for
rehearing en banc is hereby rendered moot.
ARNOLD, Circuit Judge, with
whom McMILLIAN, Circuit Judge, joins.
In denying Byrd's Rule 91
petition for habeas corpus without giving a reason, the Missouri
Supreme Court has arguably removed any procedural bar, in the
Wainwright sense, to federal habeas consideration of the merits
of the grounds alleged in the petition. We do not know the
ground upon which the Missouri Supreme Court decided to deny the
petition. In the absence of a clear statement that this action
was based on state procedural law, the merits are open on
Most of the grounds alleged in
the petition would still not get Byrd anywhere, as the state
argues, because we have either previously rejected them on the
merits, or because our rejection of them was based not on
procedural-bar but rather on successiveness or abuse-of-the-writ
principles. Two of the grounds, however, may not fit this mold.
The Swain ground, see paragraph 17 of the Rule 91 petition, and
the Mills claim, see paragraph 18 of the Rule 91 petition, both
appear to have been rejected by the panel as procedurally
barred. See the panel's opinion, slip op. 6-8, 14-16. If the
Missouri Supreme Court's form of disposition of the Rule 91
petition dissolves the procedural bar, so to speak, these claims
are now open for adjudication on the merits in the federal
We believe the panel should
carefully examine these issues. We therefore vote to grant
rehearing by the panel and to stay the execution until the panel
has made its decision.