Opposition Brief — Michael Tisius, Petitioner v. Missouri

No. 17-6938

Capital Case

_________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2017

_______________________________________________

MICHAEL TISIUS,

Petitioner,

vs.

STATE OF MISSOURI,

Respondent

_______________________________________________

On Petition for a Writ of Certiorari

To the Supreme Court of Missouri

_______________________________________________

BRIEF OF RESPONDENT IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

______________________________________

JOSHUA D. HAWLEY

Attorney General of Missouri

SHAUN J MACKELPRANG

Assistant Attorney General

Counsel of Record

RICHARD A. STARNES

Assistant Attorney General

Of Counsel

P.O. Box 899

Jefferson City, MO 65102

(573) 751-3321

Fax: (573) 751-5931

Attorneys for Respondent

Question Presented

Capital Case

Did the Missouri Supreme Court properly apply Strickland v.

Washington, 466 U.S. 668 (1984), and its progeny when it ruled (1) that the

petitioner failed to prove that counsel was ineffective for failing to call

mitigation witnesses that contradicted counsel’s mitigation strategy and (2)

that the petitioner failed to prove that counsel’s failure to present certain

other mitigating evidence created a reasonable likelihood of a different result

at his penalty trial retrial?

i

Table of Contents

Question Presented ............................................................................................... i

Table of Contents ................................................................................................. ii

Table of Authorities ............................................................................................ iii

Statement of the Case ..........................................................................................1

Reasons for Denying the Writ ..............................................................................7

I. The Petition Does Not Raise an Issue Warranting this

Court’s Review ............................................................................................7

II. The Missouri Supreme Court’s Application of the Strickland

Performance Prong Did not Conflict with this Court’s Precedents .........8

III. The Missouri Supreme Court’s Application of the Strickland

Prejudice Prong Did not Conflict with this Court’s Precedents ............ 12

A. The Missouri Supreme Court Did Not Apply an OutcomeDeterminative Test ............................................................................. 12

B. The Missouri Supreme Court Did Not Proof of a Different

Outcome at Trial by a Preponderance of the Evidence .................... 14

C. The Missouri Supreme Court Did Not Require a Showing of a

Reasonable Probability of Jury Unanimity to Choose a

Life Sentence ....................................................................................... 15

Conclusion .......................................................................................................... 18

ii

Table of Authorities

Cases

Buck v. Davis, 137 S.Ct. 759, 776 (2017) .......................................................... 13

Cullen v. Pinholster, 563 U.S. 170 (2011) ................................................... 11, 16

Harrington v. Richter, 562 U.S. 86 (2011) ........................................................ 11

Hinton v. Alabama, 134 U.S. 1081 (2017) ........................................................ 13

Holland v. Jackson, 542 U.S. 649 (2004) .......................................................... 15

Lee v. United States, 137 S.Ct. 1958 (2017)...................................................... 13

Strickland v. Washington, 466 U.S. 668 (1984) .................................. i, 7, 11, 13

Wiggins v. Smith, 539 U.S. 510 (2003) ............................................................. 16

Davis v. State, 486 S.W.3d 898 (Mo. 2016) ..........................................................9

Rousan v. State, 48 S.W.3d 576 (Mo. 2001) .........................................................9

State v. Johnson, 901 S.W.2d 60 (Mo. 1995) .......................................................9

State v. Tisius, 362 S.W.3d 398 (Mo. 2012) .........................................................1

State v. Tisius, 92 S.W.3d 751 (Mo. 2002) ...........................................................1

Tisius v. State, 519 S.W.3d 413 (Mo. 2017) ............................................... passim

Winfield v. State, 93 S.W.3d 732 (Mo. 2002) .......................................................9

Other Authorities

Rule 10 ...................................................................................................................7

Mo. Rev. Stat. § 565.030 (2001)......................................................................... 16

iii

Missouri Supreme Court Rule 29.15 ................................................................ 14

MAI-CR 3d 314.48 (2006) .................................................................................. 16

iv

Statement of the Case

The petitioner, Michael Andrew Tisius, was convicted of two counts of

murder in the first degree, Mo. Rev. Stat. § 565.020 (2000), in connection

with the June 2000 murders of Randolph County, Missouri, Sheriff’s

Deputies Leon Egley and Jason Acton, and sentenced to death for each

murder. State v. Tisius, 362 S.W.3d 398, 404 (Mo. banc 2012). His original

death sentences for those murders were set aside during post-conviction relief

proceedings. Id. After a second penalty phase trial, the petitioner was again

sentenced to death for each murder. Id. The Missouri Supreme Court

affirmed those death sentences. Id. The facts relating to the petitioner’s

offenses are summarized in the opinion of the Missouri Supreme Court in

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

After his second set of death sentences were affirmed on direct appeal,

the petitioner sought post-conviction relief in the trial court. Tisius v. State,

519 S.W.3d 413, 420 (Mo. 2017). In his motion for post-conviction relief, the

petitioner alleged, inter alia, multiple claims of ineffective assistance of trial

counsel related to thirty-three purported errors by counsel (2nd PCR L.F. 22120). The trial court denied the motion. Tisius, 519 S.W.3d at 420.

On appeal to the Missouri Supreme Court, the petitioner raised the

denial of claims related to twelve of the allegations of deficient performance

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by trial counsel. Tisius, 519 S.W.3d at 421-31. Among those were four

categories of claims that the petitioner now raises in his petition: 1) that

counsel failed to investigate and call appellant’s father and stepmother to

testify about appellant’s life living with his mother and brother; 2) that

counsel failed to investigate and call two family friends and a former teacher

to testify about his brother’s abuse of him and his adolescent homelessness

and suicidal depression; 3) that counsel failed to present portions of prior

expert testimony from Dr. Stephen Peterson to support the submission of a

statutory mitigating circumstance; and 4) that counsel failed to investigate

and present testimony from a prison inmate, a photograph, and the

transcript of the petitioner’s Alford plea hearing to refute aggravating

evidence that appellant entered an Alford plea to possession of a prohibited

item (a “boot shank”) in the Department of Corrections (Pet. 3-11). Id. at 42123, 426-28.

In evaluating the performance prong of the Strickland standard, the

Missouri Supreme Court stated:

To satisfy the Strickland performance prong, a

movant “must overcome the strong presumption that

counsel's conduct was reasonable and effective.” …

This presumption is overcome if the movant identifies

“specific acts or omissions of counsel that, in light of

all the circumstances, fell outside the wide range of

professional competent assistance.”

2

Tisius, 519 S.W.3d at 420 (internal citations omitted). The court stated the

prejudice prong as follows:

To establish Strickland prejudice, a movant

must prove that “there is a reasonable probability

that, but for counsel's unprofessional errors, the

result of the proceeding would have been different.”

…“A reasonable probability exists when there is a

probability sufficient to undermine confidence in the

outcome.”…“Regarding a sentence to death, a

defendant must show with reasonable probability

that the jury, balancing all the circumstances, would

not have awarded the death penalty.”

Id.

The court denied the petitioner’s claim regarding the failure to

investigate and call his father and stepmother. Id. at 427. The court, citing

its own previous cases, stated that the failure to call a witness “[o]rdinarily”

will not support a claim of ineffective assistance of counsel because there is a

presumption that counsel’s choice of witnesses was a matter of trial strategy.

Id. The court stated, “If a potential witness would not unqualifiedly support a

defendant, the failure to call such a witness does not constitute ineffective

assistance.” Id. It also stated that counsel will not be deemed ineffective for

failing to present cumulative evidence. Id. The court held, “Because the

testimony from Mr. Tisius’ father and stepmother would not have

unqualifiedly supported the theory put forward by the defense during the

penalty phase retrial, trial counsel’s failure to call them to testify was not

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unreasonable trial strategy.” Id. at 428 (emphasis added).

The court found that counsel’s strategy was that the petitioner’s will

had been overborne by his accomplice, who became a father figure to him,

and found that counsel had supported this theory with multiple witnesses

who testified that the petitioner lacked a father figure while growing up due

to his father’s lack of involvement in his life Id. The court also noted that the

petitioner’s father and stepmother’s testimony “placed some of the blame” on

petitioner because their testimony portrayed the petitioner as “uncooperative

and a troublemaker.” Id. The court concluded, “Because the testimony from

Mr. Tisius’ father and stepmother had the potential to present Mr. Tisius in a

negative light, their testimony did not wholly support the defense’s theory at

trial.” Id. The Court thus concluded counsel were not ineffective for failing to

call them. Id.

As to the claim regarding the three other potential mitigating

witnesses, the court concluded that the proposed testimony was cumulative

to testimony trial counsel did present establishing the petitioner’s abuse at

the hands of his brother, the petitioner’s homelessness, and the petitioner’s

suicidal attempts and threats. Tisius, 519 S.W.3d at 428. Thus, the court

concluded that counsel was not ineffective for failing to present cumulative

testimony. Id.

4

As to the claim regarding the failure to present portions of expert

testimony to support a statutory mitigating circumstance, the court noted

that, through their investigation, counsel had obtained opinions from three

different mental health experts and decided to present live testimony from a

different doctor and to have portions of the other two doctors’ prior testimony

read into the record. Tisius, 519 S.W.3d at 426. The court ruled that the

record supported the motion court’s conclusion that the decision not to read

additional portions of the testimony into the record and seek a statutory

mitigating circumstance based on extreme mental or emotional disturbance

was reasonable trial strategy; counsel had testified that they chose to present

the best portions of the prior testimony and that they believed Dr. Peterson’s

testimony about extreme mental or emotional disturbance “would have been

difficult to support in front of the jury based on the facts of the case.” Id. at

426-27. The court also concluded that the petitioner failed to prove that there

was a reasonable probability of a different result had Dr. Peterson’s

testimony been read in full because much of the testimony was cumulative to

the other portions of Dr. Peterson’s testimony and that of the other two

doctors and thus that “trial counsel had presented a clear view of Mr. Tisius’s

mental health issues to the jury without the additional excerpts of Dr.

Peterson’s testimony.” Id.

5

As to the claim of failure to present the additional “boot shank”

evidence, the court concluded that the proposed testimony of the inmate was

inadmissible because the testimony was not based on the witness’s personal

knowledge but was hearsay; thus, counsel was not ineffective for failing to

offer inadmissible evidence. Tisius, 519 S.W.3d at 421-22. The court found

that the other evidence related to the boot shank would not have created a

reasonable probability of a different result because the plea transcript and

photo of the boot shank would have emphasized the dangerous nature of the

offense and thus would not have sufficiently “rebutted the impression that

Mr. Tisius was a risk to correctional staff or other inmates[.]” Id. at 422-23.

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Reasons for Denying the Writ

I. The Petition Does Not Raise an Issue Warranting this Court’s

Review

Under Rule 10, certiorari is granted “only for compelling reasons.” Rule

10. In reviewing of a decision of a state court of last resort, review is

generally limited to claims that (1) the state court decided an important

federal question in a way that either conflicts with another state’s court of

last resort or the United States court of appeals; (2) the state court decided

an important federal question that has not been, but should be, settled by

this Court; or (3) the state court decided an important federal question in a

way that conflicts with relevant decisions of this Court. Rule 10(b), (c). A

petition for a writ of certiorari is rarely granted when the asserted error

consists of erroneous factual findings or the misapplication of a properly

stated rule of law. Rule 10.

Here, the petition only raises claims that the Missouri Supreme Court’s

decision conflicts with opinions of this Court, primarily Strickland v.

Washington, 466 U.S. 668 (1984) (Pet. 11-23). But, as explained below, the

Missouri Supreme Court properly stated the rules found in Strickland and its

progeny. Thus, the petition merely seeks to challenge the court’s application

of Strickland to the facts of the petitioner’s case. Such claims raise issues

7

that would be limited to the facts of this case, would not recur with regularity

or give rise to a split in authority among the United States court of appeals or

state courts of last resort, and would not provide helpful precedent to future

courts and litigants beyond what has already been stated by this Court in

Strickland and its progeny. Therefore, the petitioner has not raised a claim of

general importance warranting this Court’s review.

II. The Missouri Supreme Court’s Application of the Strickland

Performance Prong Did not Conflict with this Court’s Precedents

The petitioner alleges that the Missouri Supreme Court’s rule that

counsel is not ineffective for failing to present evidence that does not

“unqualifiedly support a defendant” creates an irrebuttable presumption of

effectiveness that a movant could never overcome because “there is not a

single piece of evidence or testimony that unqualifiedly supports any position

in either post-conviction or at trial” (PCR Tr. 11-15). But this argument

overstates the meaning of the Court’s language.

As used in this case (and in prior Missouri cases), the language does

not create an irrebuttable presumption; it does not even require that

potential evidence be only and entirely beneficial to the defense. Instead, the

application of that language stands for the uncontroversial proposition that

counsel is not constitutionally deficient for choosing not to present evidence

8

that is contrary to, inconsistent with, or potentially harmful to the defense’s

trial strategy and case.

In another capital case, Rousan v. State, 48 S.W.3d 576 (Mo. 2001), the

Missouri Supreme Court more fully stated the same rule in this way: “When

defense counsel believes a witness’ testimony ‘would not unqualifiedly

support his client’s position, it is a matter of trial strategy not to call him to

the stand, and the failure to call such witness does not constitute

ineffectiveness of counsel.’” Id. at 587 (emphasis added) (internal citation

omitted); see also State v. Johnson, 901 S.W.2d 60, 63 (Mo. 1995). The court

has stated the same rule using the word “unequivocally.” In Winfield v. State,

93 S.W.3d 732 (Mo. 2002), the court stated, “When defense counsel believes a

witness’ testimony would not unequivocally support his client’s position, it is

a matter of trial strategy not to call him, and the failure to call such witness

does not constitute ineffective assistance of counsel.” Id. at 739; see also Davis

v. State, 486 S.W.3d 898, 914 (Mo. 2016). Thus, the rule in Missouri is not

that evidence omitted by counsel must be irrebuttably perfect to merit a

finding of ineffective assistance of counsel. Instead, it requires merely that

the post-conviction movant prove that counsel’s decision to omit the evidence

was unreasonable.

9

The Missouri Supreme Court applied this rule to the petitioner’s claim

that counsel was ineffective for failing to call the petitioner’s father and

stepmother. Tisius, 519 S.W.3d at 427-38. Counsel’s strategy was that

abandonment by his father made the petitioner susceptible to his

accomplice’s influence as a substitute father figure; without that influence,

appellant would not have committed the murders. Id. at 428. The trial record

shows that this was a consistent theme of the defense (2nd Trial Tr. 920-925,

932, 942-943, 973, 976, 980-987, 996, 1009, 1022-1023, 1090, 1108-1110; 2nd

PCR Mov. Exh. 5 240, 243). The proposed testimony of his father and

stepmother was inconsistent with this strategy as it portrayed the

petitioner’s father in a positive light.

Moreover, the proposed testimony of petitioner’s father and stepmother

established that, when the petitioner did live with his father, he refused to

follow rules, got into trouble, and committed at least two criminal offenses

(2nd PCR Tr. 63, 161-165). As the Missouri Supreme Court held, the proposed

evidence potentially portrayed the petitioner in a negative light; thus, calling

his father and stepmother would not have supported the defense strategy.

Tisius, 519 S.W.3d 428. Therefore, the Missouri Supreme Court’s rule

regarding evidence that does not “unqualifiedly support” the defense did not

create an irrebuttable presumption, but merely established that counsel is

10

not ineffective for failing to present evidence that is contrary to, and

potentially harmful to, the defense.

The Missouri Supreme Court’s language does not contradict Strickland.

In Strickland, this Court stated, “Judicial scrutiny of counsel’s performance

must be highly deferential.” Strickland, 466 U.S. at 689. Thus, counsel is

“strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” Id.

at 690. There are “countless ways to provide effective assistance in any given

case.” Id. at 689. Counsel may make strategic choices after “less than

complete investigation” as long as counsel makes a reasonable decision that

makes particular investigations unnecessary, and a “heavy measure of

deference” is applied to that judgment. Id. at 690-91; see also Harrington v.

Richter, 562 U.S. 86, 106 (2011). Where counsel has reason to believe certain

investigations would be fruitless or even harmful, counsel’s failure to pursue

those investigations may not be later challenged as unreasonable. Strickland,

466 U.S. at 691. Further, courts have a duty not simply to give counsel the

benefit of the doubt, but to affirmatively entertain the range of possible

reasons that counsel may have had for proceeding as they did. Cullen v.

Pinholster, 563 U.S. 170, 196 (2011).

11

The Missouri Supreme Court’s reasoning that trial counsel can

reasonably omit evidence that does not support (or conflicts with) the defense

strategy is an appropriate application of Strickland and its progeny. That the

court used the phrase “unqualifiedly support” does not turn the court’s

rationale into a rule establishing an improper irrebuttable presumption of

reasonableness; rather, it merely means that counsel can reasonably elect to

omit evidence of equivocal value. Therefore, the petitioner’s claim regarding

the Missouri Supreme Court’s performance-prong analysis under Strickland

does not warrant granting a writ of certiorari under Rule 10(c).

III.

The Missouri Supreme Court’s Application of the

Strickland Prejudice Prong Did not Conflict with this Court’s

Precedents

A. The Missouri Supreme Court Did Not Apply an OutcomeDeterminative Test

First, the petitioner argues that the Missouri Supreme Court’s opinion

erroneously applied an outcome-determinative test for Strickland prejudice.

It is true that Strickland does not require “solely outcome-determinative”

proof that, but for counsel’s deficient performance, the outcome of the trial

would have been different (Pet 16). As this Court stated in Strickland, “The

defendant must show that there is a reasonable probability that, but for

12

counsel’s unprofessional errors, the result of the proceedings would have been

different.” Strickland, 466 U.S. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id.

“When a defendant challenges a death sentence…the question is

whether there is a reasonable probability that, absent the errors, the

sentencer…would have concluded that the balance of aggravating and

mitigating circumstances did not warrant death.” Id. at 695. The “ultimate

focus of inquiry must be on the fundamental fairness of the proceeding,” but

that inquiry into fundamental fairness is still focused on determining

whether or not “the result of the particular proceeding is unreliable[.]” Id. at

696. In short, it is well settled that a defendant must show a “reasonable

probability” that the result of the proceeding would have been different but

for counsel’s errors. See, e.g., Lee v. United States, 137 S.Ct. 1958, 1969-70

(2017); Buck v. Davis, 137 S.Ct. 759, 776 (2017); Hinton v. Alabama, 134 U.S.

1081, 1089 (2017).

The Missouri Supreme Court expressly applied that test here. Tisius,

519 S.W.3d at 420. The court recognized, as Strickland requires, that a

reasonable probability of a different result is one sufficient to undermine

confidence in the outcome, and it applied that standard to each of the claims

argued here. See id. at 423 (the boot shank evidence) and 427 (the additional

13

portions of Dr. Peterson’s testimony). Thus, the Missouri Supreme Court’s

application of the Strickland standard was consistent with Strickland and its

progeny.

B. The Missouri Supreme Court Did Not Require Proof of a

Different Outcome at Trial by a Preponderance of the Evidence

The petitioner argues that the Missouri Supreme Court improperly

required proof by a preponderance of the evidence that counsel’s alleged

errors affected the outcome of his trial (Pet. 17-20). This is incorrect. The

Missouri Supreme Court requires post-conviction movants to prove claims

raised in post-conviction motions by a preponderance of the evidence.

Missouri Supreme Court Rule 29.15(i). Thus, the petitioner was required to

prove his claim of ineffective assistance of counsel (including the Strickland

prejudice prong) by a preponderance of the evidence. Tisius, 519 S.W.3d at

420. But that did not mean that the petitioner had to prove a “more likely

than not” effect on the trial from counsel’s errors. Instead, the petitioner was

required to prove prejudice (a reasonable probability of a different resulted)

by a preponderance of the evidence. Thus, the petitioner was not required to

prove anything more than Strickland required: that there was a reasonable

probability of a different result but for counsel’s deficient performance.

This Court rejected the same claim the petitioner now raises in

14

Holland v. Jackson, 542 U.S. 649 (2004). This Court noted that the state

court had properly stated the Strickland standard and, thus, that its

language about proving post-conviction claims by a preponderance of the

evidence “is reasonably read as addressing the general burden of proof in

postconviction proceedings[.]” Id. at 654. Because the state court stated and

applied the Strickland prejudice standard, there was no reason to interpret

the preponderance of the evidence language as anything other than a

reference to a general burden of proof, as “such a reading would needlessly

create internal inconsistency in the opinion.” Id. The same is true here. The

Missouri Supreme Court’s general statement of the burden of proving postconviction claims did not modify the Strickland prejudice analysis.

C. The Missouri Supreme Court Did Not Require a Showing of a

Reasonable Probability of Jury Unanimity to Choose a Life Sentence

The petitioner’s third claim is that the Missouri Supreme Court

required proof that the “entire jury,” as opposed to one juror, would have

decided against the death penalty in order to prove Strickland prejudice (Pet.

20-22). The petitioner cites to language where the court stated that the

movant was required to prove a reasonable probability “that the jury,

balancing all of the circumstances, would not have awarded the death

penalty” (Pet. 20). Tisius, 519 S.W.3d at 420. This Court has held that, in the

15

death sentencing context, the defendant need only prove that “at least one

juror would have struck a different balance.” See, e.g., Wiggins v. Smith, 539

U.S. 510, 513 (2003); Pinholster, 563 U.S. at 236. But while the Missouri

Supreme Court did not explicitly use the “one juror” language, under

Missouri law, its statement that “the jury” would not have awarded the death

penalty is fully consistent with that standard.

Under Missouri’s death penalty sentencing scheme, the defendant can

only be sentenced to death if the jury unanimously agrees to impose a death

sentence. Mo. Rev. Stat. § 565.030 (2001). The jury is instructed that it

“cannot return any verdict imposing a sentence of death unless all twelve

jurors concur in and agree to it[.]” MAI-CR 3d 314.48 (2006). Thus, by

necessity, if one juror decided against a death sentence, the jury, “balancing

all of the circumstances, would not have awarded the death penalty.” Tisius,

519 S.W.3d at 420. In short, while the court employed different language, the

meaning was the same: one juror balancing the choice between life and death

in favor of life means that the jury would not have decided to impose death.

There is no conflict between this Court’s Strickland jurisprudence and the

Missouri Supreme Court’s opinion in this case.

The petitioner further asserts that he did prove a reasonable

probability of a different result in this case because he proved that one juror

16

would have “struck a different balance” (Pet. 22-23). But inasmuch as the

Missouri Supreme Court properly applied Strickland, the petitioner is merely

arguing for a different outcome. Because there is no conflict between any

opinion of this Court and the Missouri Supreme Court, the petitioner’s

request for a writ of certiorari should be denied.

17

Conclusion

The petition should be denied.

Respectfully submitted,

JOSHUA D. HAWLEY

Attorney General of Missouri

SHAUN J MACKELPRANG

Assistant Attorney General

Counsel of Record

P.O. Box 899

Jefferson City, MO 65102

(573) 751-3321

Fax: (573) 751-5391

Attorneys for Respondent

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