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Frank Joseph GUINAN

 
 
 
 
 

 

 

 

   
 
 
Classification: Murderer
Characteristics: Revenge
Number of victims: 2
Date of murders: January 25, 1981 / 1985
Date of birth: November 30, 1945
Victims profile: John McBroom (fellow inmate) / Robert Baker (fellow death-row inmate)
Method of murder: Stabbing with knife made from scissor halves
Location: Missouri, USA
Status: Executed by lethal injection in Missouri on October 6, 1993
 
 
 
 
 
 

State of Missouri v. Frank Joseph Guinan

665 SW 2d 325

Frank Joseph Guinan was executed on October 6, 1993

Case Facts:

Because January 25, 1981, fell on a Sunday, Sergeant Matthias was the only correctional officer on duty in Unit 4 of the Missouri State Penitentiary. He was located in a booth on the ground floor from which he could observe all cells.

About 10:30am, the officer began to notice what he considered unusual and suspicious behavior on the part of several inmates. Inmates Sherrill, Cleveland and Hewitt had left the places where they normally "hung out" and had taken up positions where they could watch the officer.

Guinan and Zeitvogal made several trips to upper tiers and beginning at 10:55am, Cleveland made requests of the officer that he ring the buzzer for "mainline"—a term for the time when most inmates went to their noon meal. The request for "mainline" was considered suspicious by the officer because inmates were free to go to lunch before ‘mainline" sounded.

A few minutes after 11:00am, when the officer saw defendant and Zeitvogal go back upstairs another time and Cleveland made another request for "mainline", Sergeant Matthias called his shift captain, Captain Borghardt, and told him something was wrong and he had the feeling he was going to need some help.

Shortly after the sergeant made the telephone call but before assistance arrived he saw Guinan and Zeitvogal emerge from cell 36. Both men were covered with blood and each carrying a knife made from scissor halves.

During the flight and capture of Guinan and Zeitvogal, Sergeant Matthias saw inmate and victim McBroom come out of cell 36 covered with blood and bleeding profusely.

He collapsed outside the cell and was taken to the prison hospital where he died as a result of massive blood loss. He suffered at least sixteen separate stab wounds, including three around the left eye which had penetrated into the brain, and others in the chest and back which had severed major blood vessels in the liver and right lung.

 
 

Missouri Executes Inmate Who Killed 2 While in Prison

The New York Times

October 7, 1993

An inmate who committed two murders behind bars, one of them while on death row, was executed by injection today.

Frank J. Guinan, 47, was put to death for killing a fellow inmate, John McBroom, with knives made from a pair of scissors in 1981. Mr. Guinan was serving 40 years for robbery and assault with intent to kill when he and a cellmate, Richard Zeitvogel, stabbed Mr. McBroom, who they said was an informer.

Mr. Guinan received a second death sentence for the 1985 slaying of a fellow death-row inmate, Robert Baker, who was stabbed more than 50 times.

Mr. Guinan's lawyer contended on appeal that there was new evidence that Mr. Zeitvogel alone killed Mr. McBroom.

Wife Waves Goodbye

Mr. Guinan went to his death just after midnight at the Potosi Correctional Center, hours after the Supreme Court denied a stay of execution.

His wife, Penny, waved goodbye and mouthed, "I love you," several times from a window. Mr. Guinan responded, but his words could not be heard.

In an interview in The St. Louis Post-Dispatch on Tuesday, Mr. Guinan said he had walked into Mr. McBroom's cell to find Mr. Zeitvogel stabbing Mr. McBroom.

"I told Rich to stop, but it was too late," Mr. Guinan said.

Mr. Zeitvogel was also convicted and sentenced to death. He is on death row.

 
 

Frank Guinan  (Executed 10/6/93)

Frank Guinan was given the death sentence for murdering fellow inmate John McBroom at the prison in Jefferson City in 1982.  Psychological testing in 1990 and 1991 found that Guinan did not have the ability to “deliberate” at the time of the homicide.  Testing concluded he had “mild to moderate” brain damage that prevented him from thinking “logically or clearly in any kind of stressful situation”… He can “act, but can’t think.”  Guinan had a history of attempted suicide and had taken extensive psychotropic medications in prison.

Guinan's trial attorney offered no mitigating evidence during the penalty phase of his trial.  The jury also never had the opportunity to consider evidence from four eyewitnesses who saw the stabbing of McBroom and would have testified that another inmate wielded the knife.  Moreover, at least one of these eyewitnesses had sworn that he was intimidated by prison officials into not testifying to what he actually saw.  Other witnesses not called at the trial would testify that it was common knowledge among inmates and corrections officials at the Missouri State Penitentiary that Richard Zeitvogel, rather than Guinan, had killed McBroom.

 
 

5 F.3d 313

26 Fed.R.Serv.3d 1294

Frank J. GUINAN, Appellant,
v.
Paul K. DELO, Superintendent, Potosi Correctional Center, Appellee.

No. 93-1953.

United States Court of Appeals,
Eighth Circuit.

Submitted June 9, 1993.
Decided Sept. 16, 1993.

Before RICHARD S. ARNOLD, Chief Judge, FAGG and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

Frank J. Guinan appeals from the District Court's1 denial of his Rule 60(b) motion, see Fed.R.Civ.P. 60(b), seeking relief from the District Court's decision denying Guinan's 28 U.S.C. Sec. 2254 petition for a writ of habeas corpus. Prior to the filing of Guinan's Rule 60(b) motion, we affirmed the District Court's denial of his habeas petition in Guinan v. Armontrout, 909 F.2d 1224 (8th Cir.1990), cert. denied, 498 U.S. 1074, 111 S.Ct. 800, 112 L.Ed.2d 861 (1991). We now affirm the denial of Guinan's Rule 60(b) motion.

I.

The Supreme Court of Missouri summarized the evidence underlying Guinan's murder conviction in its affirmance of Guinan's conviction on direct appeal. State v. Guinan, 665 S.W.2d 325, 327-28 (Mo.) (en banc), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984). We repeat only those portions of the evidence that are relevant to this opinion.

In 1981, Guinan was incarcerated at the Missouri State Penitentiary where he shared a cell on the ground floor of Housing Unit 4 with Richard Zeitvogel. The murder victim, John McBroom, shared a cell with William Houchin on the second floor of the same housing unit. McBroom's murder occurred on January 25, 1981, a Sunday morning and thus a time when only one officer was posted on duty in the housing unit.

Beginning at approximately 10:30 a.m. on the day of the murder, the officer on duty in the housing unit observed Guinan and Zeitvogel make several trips to the upper levels of the unit. The officer also noticed that Houchin, who normally remained in his cell until noon, was outside the cell and that three other inmates had taken positions from which they could observe the officer.

Beginning at 10:55 a.m., two of these three inmates began to request that the officer ring the buzzer for "mainline." When "mainline" is rung, most inmates go to the cafeteria for lunch, creating a considerable amount of noise and movement in the housing unit as they depart. The request for "mainline" was unusual, since prisoners who wish to may go to the cafeteria before "mainline." The officer called his shift captain and said that he had a feeling that something was wrong and that he was going to need help.

Shortly after 11:00 a.m., and before help arrived, the officer observed Guinan and Zeitvogel emerge from McBroom's cell. Both men were covered with blood and each was carrying a knife fashioned from one half of a pair of scissors. As Guinan attempted to close the door to the cell, he saw the officer watching him. Both Guinan and Zeitvogel began running away from the area of McBroom's cell.

At this point, the reinforcements the officer had requested arrived and, following a brief altercation, subdued and disarmed Guinan and Zeitvogel. During the capture McBroom staggered out of his cell covered in blood. McBroom was taken to the prison hospital where he was pronounced dead at 11:27 a.m. McBroom had suffered at least sixteen separate stab wounds, including three around the left eye that penetrated his brain and six in his back.

Prior to trial, Guinan's counsel moved for a mental examination. See Mo.Rev.Stat. Sec. 552.020 (Supp.1980). Section 552.020.2 provides that "[w]henever any judge has reasonable cause to believe that the accused has a mental disease or defect excluding fitness to proceed he shall ... appoint one or more private psychiatrists ... to examine the accused or shall order the director of the department of mental health ... to have the accused examined." Guinan's counsel argued that Guinan's history of violent crime, the seriousness of the offense with which he was charged, and counsel's doubt about Guinan's competency based on counsel's difficulty in eliciting specific responses from Guinan all supported conducting a mental examination of Guinan. The state trial court denied the motion for a mental examination.

At trial Guinan relied on a theory of self-defense. The jury rejected Guinan's theory and convicted him of capital murder. See id. Sec. 565.001 (1978). At the punishment phase of the trial, the state introduced evidence of Guinan's twelve prior felony convictions, including two for assault with intent to kill with malice, and of a previous stabbing incident at the prison in which Guinan was involved. Guinan did not present any evidence at the punishment phase of the trial. The jury found three statutory aggravating factors: namely, that Guinan had "a substantial history of serious assaultive criminal convictions," id. Sec. 565.012.2(1) (Supp.1980); that the murder "was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind," id. Sec. 565.012.2(7) (Supp.1980); and that at the time of the murder Guinan was "in a place of lawful confinement," id. Sec. 565.012.2(9) (Supp.1980). The jury sentenced Guinan to death.

The Supreme Court of Missouri affirmed Guinan's conviction and sentence on appeal. Guinan, 665 S.W.2d 325. Guinan sought post-conviction relief under Rule 27.26 of the Missouri Supreme Court Rules arguing, inter alia, that his trial counsel was ineffective in failing to investigate adequately a possible defense based on mental disease and in failing to present mitigating evidence at the punishment phase of the trial. The state trial court denied Guinan's Rule 27.26 motion, and the Missouri Court of Appeals affirmed that denial. Guinan v. State, 726 S.W.2d 754 (Mo.Ct.App.1986), cert. denied, 484 U.S. 873, 108 S.Ct. 210, 98 L.Ed.2d 161 (1987).

Guinan then sought federal habeas relief under 28 U.S.C. Sec. 2254 raising, among other arguments, these same two claims of ineffective assistance of trial counsel. The District Court ordered a psychiatric evaluation of Guinan and heard evidence from the psychiatrist and the psychologist who conducted the evaluation. Guinan was diagnosed as having antisocial personality disorder; the psychiatrist explained this as "a diagnosis that does not infer a severe mental disease. It's really personality characteristics that meet certain criteria...." Guinan, 909 F.2d at 1229 (quoting Transcript of Evidentiary Hearing at 18).

The evaluation also characterized Guinan as being overcontrolled; the psychologist explained that this meant that Guinan "may bottle up his frustrations rather than finding some way of dispelling them and then after they have kind of accumulated for a period of time, they burst forth in an overly aggressive an [sic] inappropriate way." Id. at 1230 (quoting Transcript of Evidentiary Hearing at 41). The examiners concluded, however, that there was no reason to believe that Guinan suffered from any mental illness either at the time of the examination or in January 1981 when the murder was committed. James R. Leach, D.O., & David L. Reuterfors, Ph.D., Forensic Evaluation of Frank Guinan at 5-6 (Aug. 8, 1988).

The District Court denied Guinan's petition for habeas relief, finding that "there was no prejudice by omission of this evidence even if the Court assumes that counsel was ineffective for failing to further investigate this area." Guinan v. Armontrout, No. 87-4467-CV-C-5, slip op. at 10 (W.D.Mo. May 18, 1989). The District Court reasoned that Guinan's mental problems did not constitute a mental disease or defect significant enough to excuse responsibility for the crime or to undermine confidence in the outcome of the sentencing determination.

We affirmed the judgment of the District Court. Guinan, 909 F.2d 1224. Guinan then filed a motion in the District Court pursuant to Rule 60(b) of the Federal Rules of Civil Procedure seeking relief from the District Court's judgment. The basis for the Rule 60(b) motion was a new mental evaluation of Guinan conducted by William O'Connor, a psychologist, who concluded that Guinan suffers from organic mental disorder.

The District Court held an evidentiary hearing on the Rule 60(b) motion, at which O'Connor testified. O'Connor agreed with Leach and Reuterfors that Guinan did not suffer from any psychosis, that Guinan was not insane at the time of the murder, and that Guinan was competent to stand trial. According to O'Connor's evaluation, however, Guinan has mild to moderate organic brain damage dating back to before the time of the murder. This brain damage impairs Guinan's "ability to think in a logical organized fashion or plan and anticipate in a logical fashion rapidly." Transcript of Rule 60(b) Hearing at 44. According to O'Connor, "[i]n a prison fight or similar stressful situation, Mr. Guinan's reaction would have been to act without thinking." Affidavit of William A. O'Connor at 2 (Jan. 26, 1993) (filed with Guinan's motion to alter or amend). O'Connor also stated that he believed that at the time of the murder Guinan "was incapable of considering the taking of another's life with a cool and deliberate state of mind." Id.

The District Court treated Guinan's Rule 60(b) motion as a second habeas petition. It found that Guinan's claims were barred under the rules applicable to successive petitions and denied the motion. Guinan then filed a motion under Rule 59(e) asking the District Court to alter or amend its judgment. The District Court denied the motion. Guinan appeals from the denial of his Rule 60(b) motion.

II.

Guinan argues that the trial court erred in treating his Rule 60(b) motion as a second habeas petition. We disagree. Rule 60(b) allows a court to relieve a party from a final judgment in certain circumstances, including the case in which the party discovers evidence after trial that could not have been discovered earlier by the exercise of due diligence. Fed.R.Civ.P. 60(b)(2). At least twice previously, however, we have held that a Rule 60(b) motion seeking relief from the denial of a habeas petition was properly treated as a second habeas petition. Bolder v. Armontrout, 983 F.2d 98, 99 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1070, 122 L.Ed.2d 497 (1993); Blair v. Armontrout, 976 F.2d 1130, 1134 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2357, 124 L.Ed.2d 265 (1993).

Guinan correctly points out that neither Bolder nor Blair mandates that all Rule 60(b) motions in habeas cases be treated as subsequent habeas petitions. We do not rule out the possibility that a habeas case may present circumstances in which a Rule 60(b) motion might properly be examined as such rather than as a subsequent habeas petition. This, however, is not such a case. Guinan's motion was based on new evidence: O'Connor's evaluation of Guinan's mental status. The motion was brought on January 2, 1991, some nineteen months after the District Court's judgment denying Guinan's habeas petition. Thus the motion was untimely under Rule 60(b). See Fed.R.Civ.P. 60(b) (providing that motions brought on the basis of newly discovered evidence shall be brought "not more than one year after the judgment").

The case on which Guinan relies is inapposite. Landano v. Rafferty, 126 F.R.D. 627 (D.N.J.1989), rev'd on other grounds, 897 F.2d 661 (3d Cir.), cert. denied, 498 U.S. 811, 111 S.Ct. 46, 112 L.Ed.2d 23 (1990). In that case, Landano brought a Rule 60(b) motion more than a year after the district court's initial judgment denying habeas was entered. The motion was based on newly discovered exculpatory evidence, which the government previously had failed to provide to Landano in violation of Landano's constitutional rights. The court held that Landano's motion was not based only on newly discovered evidence, and granted Landano relief under the catchall provision of Rule 60(b)(6), which allows relief for "any other reason justifying relief" and is not subject to the one-year time limit applicable to motions based on newly discovered evidence.

In the case before us no constitutional violation akin to that in Landano prevented the discovery of the new evidence. To be sure, the District Court selected the experts who examined Guinan in the original habeas proceeding, but that was its prerogative. Guinan was not foreclosed from obtaining O'Connor's evaluation during the original habeas proceeding. Guinan's Rule 60(b) motion based on nothing more than O'Connor's evaluation was subject to the one-year time limit; because the motion was untimely, it was not eligible for consideration under Rule 60(b). For this reason alone, the trial court correctly treated the motion as a second habeas petition. Moreover, even if the Rule 60(b) motion had been timely, the District Court still would have been correct in treating it as a second habeas petition, because it seeks to raise claims that either could have been raised in Guinan's original habeas petition or were raised therein and adjudicated.

III.

Guinan argues that O'Connor's evaluation shows that Guinan was not guilty of capital murder since he could not have committed the murder "deliberately," and that Guinan's trial counsel was ineffective in failing to present this argument at trial. Guinan did not focus in his original habeas petition on this particular aspect of the broader claim that counsel's failure to adequately investigate Guinan's mental status deprived Guinan of a possible defense, and he did not raise the issue in his Rule 60(b) motion. Guinan made the argument for the first time in his Rule 59(e) motion seeking to alter or amend the District Court's judgment denying his Rule 60(b) motion, but he appeals only from the denial of his Rule 60(b) motion. Thus the issue is not properly before us.

Even if the "deliberation" claim were properly before us, the claim, which is based on O'Connor's new evaluation of Guinan, would be barred as an abuse of the writ unless Guinan could demonstrate cause and prejudice for his failure to raise the claim in his original petition or unless failure to address the claim would constitute a miscarriage of justice. See Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992). Guinan does not allege cause for his failure to present the claim in his original petition but relies instead on the "miscarriage of justice" or actual innocence exception. Thus, before a federal court could hear the merits of his newly raised claim, Guinan would have to demonstrate by clear and convincing evidence that, had his trial counsel provided effective assistance, no reasonable juror would have found him guilty of capital murder. See id. at ----, 112 S.Ct. at 2517; McCoy v. Lockhart, 969 F.2d 649, 651 (8th Cir.1992) (holding that the standard set forth in Sawyer for challenges to the imposition of the death penalty also applies to challenges to criminal convictions).

The capital murder statute under which Guinan was convicted provides that a person who "deliberately" kills another person is guilty of capital murder. Mo.Rev.Stat. Sec. 565.001. Under Missouri law, deliberation separates capital murder from second degree murder and is an essential element of capital murder. State v. Gilmore, 650 S.W.2d 627, 629 (Mo.1983) (en banc). Deliberation "means the defendant considered the taking of another's life while in a cool and deliberate state of mind." State v. Eggers, 675 S.W.2d 923, 927 (Mo.Ct.App.1984). Deliberation "may be proved by indirect evidence and inferences reasonably drawn from circumstances surrounding the slaying." State v. Turner, 623 S.W.2d 4, 7 (Mo.1981) (en banc), cert. denied, 456 U.S. 931, 102 S.Ct. 1982, 72 L.Ed.2d 448 (1982). Proof of mental derangement short of insanity may be considered as evidence of lack of deliberate design. State v. Anderson, 515 S.W.2d 534, 540 (Mo.1974) (en banc).

Although these principles of Missouri law allow the type of defense that Guinan claims his counsel should have made, we do not believe that Guinan has met his burden of showing that no reasonable jury presented with O'Connor's evidence would have found that Guinan murdered McBroom deliberately. The central problem with Guinan's argument is that the record is replete with evidence that McBroom's murder was planned well in advance of the time it took place.

The murder took place on a Sunday morning, a time when only one guard supervised the housing unit in which Guinan and McBroom resided. Guinan and Zeitvogel, who normally remained on the ground floor of the unit, made several trips into the upper tiers of the housing unit in the half-hour preceding the murder. At least four other inmates appear to have been aware of the murder in advance and to have assisted Guinan and Zeitvogel in its perpetration: three inmates took up positions from which they could watch the officer on duty and attempted to create a distraction by requesting that the officer ring "mainline"; and Houchin, McBroom's cell mate, who ordinarily remained in his cell until noon, left the cell leaving McBroom there alone. Finally, Guinan and Zeitvogel were both armed with homemade knives when they entered McBroom's cell.

This evidence that the murder was planned in advance is powerful circumstantial evidence that Guinan committed the murder deliberately. Moreover, although the evidence strongly supported a finding that the murder was planned in advance in some detail, O'Connor's evidence went principally to Guinan's ability to deliberate when suddenly confronted with a stressful situation such as a prison fight. According to O'Connor, in such a situation Guinan's reaction would have been to act without thinking. Such evidence might have considerable force in showing that Guinan did not commit the murder deliberately if Guinan's defense that McBroom was the aggressor were plausible. But that defense is incredible in light of the strong evidence that Guinan and Zeitvogel planned McBroom's murder in advance.

We are mindful that O'Connor states in his affidavit that he believes Guinan to be incapable of "considering the taking of another's life with a cool and deliberate state of mind." Affidavit of William A. O'Connor at 2. There is nothing to indicate, however, that this statement reflected anything more than O'Connor's personal beliefs. We have reviewed carefully the entire transcript of O'Connor's testimony given at the Rule 60(b) evidentiary hearing, and we note that O'Connor neither mentioned this belief, nor, in contrast to the other opinions he rendered, gave any testimony regarding any tests he had conducted that supported such an opinion or regarding any other basis for such an opinion. Therefore we accord little weight to this unsupported statement.

In sum, Guinan falls far short of the showing required to satisfy the "miscarriage of justice" exception. Guinan has not shown by clear and convincing evidence that no reasonable juror presented with O'Connor's testimony could have found beyond a reasonable doubt that Guinan murdered McBroom deliberately. Thus, even if this ineffective assistance claim were properly before us, we would be barred by the principles set forth by the Supreme Court in Sawyer v. Whitley from reaching its merits.

IV.

Guinan also argues that O'Connor's evaluation supports Guinan's claim of ineffective assistance of counsel at the sentencing phase of Guinan's trial. Again, Guinan does not assert cause for his failure to present evidence of O'Connor's evaluation in his first habeas petition. Thus Guinan's claim is barred as either a successive claim or as an abuse of the writ unless failure to address the claim would result in a miscarriage of justice. Guinan cannot meet this standard in light of the Supreme Court's decision in Sawyer. In that case, the Court held that "the 'actual innocence' requirement must focus on those elements which render a defendant eligible for the death penalty, and not on additional mitigating evidence which was prevented from being introduced as a result of a claimed constitutional error." Sawyer, --- U.S. at ----, 112 S.Ct. at 2523. In order to establish a miscarriage of justice, a petitioner must show that "there was no aggravating circumstance or that some other condition of eligibility" was not met. Id. at ----, 112 S.Ct. at 2522.

Under Missouri law, a defendant who is convicted of capital murder is subject to the death penalty if the jury finds at least one of the statutory aggravating factors set forth in section 565.012. See Mo.Rev.Stat. Sec. 565.012.5 (Supp.1980). In Guinan's case, the jury found three statutory aggravating factors, and O'Connor's evaluation of Guinan's mental status is completely irrelevant to at least two of these factors: that Guinan had a substantial history of serious assaultive criminal convictions, and that at the time of the murder Guinan was in a place of lawful confinement. The record clearly supports the jury's finding of these two aggravating factors. Guinan cannot show by clear and convincing evidence that no reasonable juror would have found these aggravating factors if O'Connor's evaluation had been presented to the jury. O'Connor's evaluation is simply additional mitigating evidence. Therefore, the District Court correctly held that Guinan's sentencing-phase claim based on O'Connor's evaluation is barred under the Sawyer principles applicable to serial habeas petitions.

V.

For the reasons set forth above, we hold that the District Court correctly treated Guinan's Rule 60(b) motion as a second habeas petition and correctly found that Guinan's claims are barred under the rules applicable to successive petitions.

The State of Missouri has filed in this case a motion to quash the certificate of probable cause issued by the District Court and to vacate the stay of execution entered by that court.

This appeal has proceeded and we now have decided it. Accordingly, the motion to quash the certificate of probable cause is denied as moot. The motion to vacate the stay of execution is granted, and the stay is hereby vacated.

The judgment of the District Court is affirmed.

*****

1

The Honorable Scott O. Wright, Senior United States District Judge for the Western District of Missouri

 
 

7 F.3d 111

Frank J. GUINAN, Appellant,
v.
Paul K. DELO, Superintendent, Potosi Correctional Center, Appellee.

No. 93-3394.

United States Court of Appeals,
Eighth Circuit.

Oct. 4, 1993.

Before RICHARD S. ARNOLD, Chief Judge, FAGG and BOWMAN, Circuit Judges.

ORDER

We have before us the state's motion to vacate the District Court's stay of execution that was imposed in the above-captioned case on October 1, 1993. Frank J. Guinan has been sentenced to death for the January 1981 stabbing death of John McBroom at the Missouri State Penitentiary. He is scheduled to be executed on October 6, 1993, at 12:01 a.m.

Guinan's motion for a stay of execution was filed with his petition for writ of habeas corpus under 28 U.S.C. § 2254 on September 30, 1993, at 4:00 p.m. This is Guinan's third federal habeas petition. See Guinan v. Armontrout, 909 F.2d 1224 (8th Cir.1990), cert. denied, 498 U.S. 1074, 111 S.Ct. 800, 112 L.Ed.2d 861 (1991); Guinan v. Delo, 5 F.3d 313, 316 (8th Cir.1993) (treating motion under Federal Rule of Civil Procedure 60(b) seeking relief from denial of first habeas petition as second habeas petition).

For the first time, he is raising a claim that he was not in John McBroom's cell when McBroom was stabbed to death and had nothing to do with the murder, except possibly to try and prevent it. That is, Guinan is now asserting actual innocence of the murder. He supports this claim with eight affidavits from other prisoners convicted of murder and other violent offenses, and an affidavit from a physician who performed surgery on Guinan's hand. Although it is not entirely clear, Guinan apparently is claiming that his trial counsel was ineffective for having failed to interview or call some of these witnesses, and for having failed to elicit the appropriate testimony from others who were called as witnesses at the trial.1

Since the present claims in the petition for writ of habeas corpus have not been raised earlier, they are abusive claims. Guinan makes no showing of cause for his abuse of the writ. Indeed, it appears that the claims have been withheld deliberately until virtually the last minute.2 To show probable actual innocence and obtain relief, therefore, Guinan "must show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner" guilty of capital murder under the applicable state law. Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2517, 120 L.Ed.2d 269 (1992) (announcing standard in habeas petitioner's challenge to death sentence); see also McCoy v. Lockhart, 969 F.2d 649, 651 (8th Cir.1992) (holding that Sawyer standard applies to habeas petitioner's challenge to conviction).

We have carefully reviewed the late-blooming statements from fellow prisoners that Guinan claims his trial counsel was derelict in not obtaining. We find them to be often inconsistent with previous sworn testimony of the same witness, in some cases inconsistent with each other, inconsistent with the great bulk of evidence adduced at Guinan's trial, and on occasion inconsistent with defenses Guinan previously has asserted. Guinan's explanations for the eleven-year delay between Guinan's trial and the discovery of these witnesses and their evidence is nonexistent or unpersuasive. Some of the contentions are not new at all, but comport with Guinan's defense at trial; new witnesses do not translate necessarily into new evidence. Several of the affidavits simply report inadmissible hearsay. Others repeat statements of Guinan's innocence allegedly overheard by the affiants and supposedly made by the other prisoner accused in the McBroom murder, Richard Zeitvogel, who already had testified at Guinan's trial that he committed the murder without Guinan's assistance.

Guinan also submits the affidavit of Dr. Richard Heimburger, a plastic surgeon who performed surgery to repair tendons in Guinan's right hand nearly eight weeks before the murder, examined the hand approximately two and one-half weeks after the murder, and continued to follow-up with Guinan for months after the surgery. Heimburger states "that it would have been somewhat difficult and painful" for Guinan to have participated in the murder (presuming, we assume, Guinan would have used his right hand). Heimburger Affidavit p 11. Concluding it would be "somewhat difficult," however, is a far cry from stating it would not be possible. Moreover, this is not newly discovered evidence. Guinan knew of his surgery when it occurred, and in fact introduced hospital records of the injury at his trial.

"Applying the prevailing legal standard it is 'particularly egregious' to enter a stay on second or subsequent habeas petitions unless 'there are substantial grounds upon which relief might be granted.' " Delo v. Blair, --- U.S. ----, ----, 113 S.Ct. 2922, 2923, 125 L.Ed.2d 751 (1993) (per curiam) (vacating stay of execution) (quoting concurring opinion in Herrera v. Collins, --- U.S. ----, ----, 113 S.Ct. 853, 873, 122 L.Ed.2d 203 (1993)). We have only recently looked at the record in this case, Guinan v. Delo, 5 F.3d 313 (8th Cir.1993), and again direct attention to the thorough recitation of facts and overwhelming evidence of guilt found in the Missouri Supreme Court's opinion affirming Guinan's conviction on direct appeal, State v. Guinan, 665 S.W.2d 325, 327-29 (Mo.) (en banc), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984). In view of the State's evidence, we conclude that even if Guinan's "newly discovered evidence" had been presented to the jury it cannot be said that no reasonable juror would have found petitioner guilty of capital murder.

Accordingly, the claim presented in the present petition is barred from federal court review and the stay of execution must be, and hereby is, vacated.

*****

1

"Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Herrera v. Collins, --- U.S. ----, ----, 113 S.Ct. 853, 860, 122 L.Ed.2d 203 (1993). We note that even if one reads Herrera as establishing that an exceptionally strong, highly persuasive showing of actual innocence may be an independent ground for federal habeas relief, Guinan's "newly discovered evidence" falls far short of the mark

2

Seven of the eight prisoner affidavits were attested to before July 3, 1993; three were signed as early as February and March 1993

 

 

 
 
 
 
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