Appendix — Bowersox v. Wilkins

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Supreme Court

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SUPREME COURT OF THE UNITED STATES

October Term, 1998

MICHAEL BOWERSOX,

Superintendent, Potosi Correctional Center

Petitioner,

Vv.

HEATH ALLEN WILKINS,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

APPENDIX TO PETITION

Volume |

JEREMIAH W. (JAY) NIXON

Attorney General

STEPHEN D. HAWKE

Assistant Attorney General

Counsel! of Record

CASSANDRA K. DOLGIN

Assistant Attorney General

of Counsel

Post Office Box 899

Jefferson City, Missouri 65102

(573) 751-3321

Attorneys for Petitioner

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Table of Contents

Volume i

Opinion in Wilkins v. Bowersox, No. 96-2441

(Rr CAP. ne G 1008) Go 4 iw... 1

Dispositive Order in Wilkins v. Bowersox, No. 91-

0861-CV-W-5 (W.D. Mo. May 15, 1996) .. . 26

Judgment in Wilkins v. Bowersox, No. 91-0861-

CV-W-5 (W.D. Mo. May 15, 1996) ....... 94

Order Denying State's Motion To Preciude Consider-

ation Of Evidence Adduced Before This Court

On Petition For Writ Of Habeas Corpus and

granting Wilkins’ Motion To Expand The

Record, in Wilkins v. Bowersox, No. 91-0861-

CV-W-5 (W.D. Mo. May 15, 1996) ....... 95

Order Denying Rehearing and Rehearing En Banc

in Wilkins v. Bowersox, No. 96-2441 (8th Cir.

My F3; AGED) 652. ee Are abt Ge 103

Order Granting Wilkins' Motion To Set Aside Order

Dated May 16, 1995 and Revised Motion To

Dismiss Certain Claims in the Amended

Petition in Wilkins v. Bowersox, No. 91-

0861-CV-W-5 (W.D. Mo. April 23, 1996) . . 104

Judgment Granting Motion To Remand in Wilkins

v. Delo, No. 95-2724WMKC (8th Cir.

SR Me ae Aa a wee wk so vk 110

Order Denying State's Motion To Alter Or Amend

in Wilkins v. Delo, No. 91-0861-CV-W-5

(W.D. Mo. June 16, 1995) ............ 111

Order Granting Writ of Habeas Corpus in Wilkins

v. Delo, No. 91-0861-CV-W-5 (W.9. Mo.

S| RM ae a ee 113

Judgment in Wilkins v. Delo, No. 91-0861-CV-W-5

(W.D. Mo. May 18, 1995) ............ 139

Opinion of the Missouri Supreme Court in Wilkins

v. State, No. 71936, as reported at 802

S.W.2d 491 (Mo. banc), cert. denied,

SOR US ee TIM ie ES ein . 141

Volume ii

Opinion of the Missouri Supreme Court in State

Vv. Wilkins, No. 68393, as reported at 736

S.W.2d 409 (Mo. banc 1987), cert. granted

in part, Wilkins v. Missouri, 487 U.S. 1233

(1988), affd sub nom. Stanford v. Kentucky,

2US. SH (1008) .5 Ss crtewd. 176

Transcript Of Proceedings On Plea of Guilty And

Sentence Of Death in State v. Wilkins, No.

CR185-491FX, 492°X, 493—X (Response

Exhibit A-2 in Wilkiis v. De.v, No. 91-0861-

CV-W-5 (W.D. Mo.)), pp. 1-194 ........ 212

a ee

United States Court of Appeals

FOR THE EIGHTH CIRCUIT —

No. 96-2441

Heath Alien Wilkins,

Petitioner-Appeliee,

- Appeal from the

United States

vs. District Court

for the Western

District of

Missouri

Michael Bowersox,

Respondent-Appeliant.

Submitted: March 10, 1997

Filed: June 8, 1998

Before McMILLIAN AND HANSEN, Circuit Judges, arid

MAGNUSON,’ District Judge.

HANSEN, Circuit Judge.

‘The Honorable Paul A. Magnuson, Chief

Judge, United States District Court for the District of

Minnesota, sitting by designation.

2

‘The Superintendent of the Potosi Correctional

Center in Mineral Point, Missouri, Michael Bowersox

(napsndecth sepadie tem the jigment of the district

granting Health Allen Wilkins’ petition for a writ of

habeas corpus pursuant to 28 U.S.C. §2254 (1994). In

1986, Wilkins pleaded guilty to first-degree murder and

received a death sentence for a Missouri state trial

court. The district court granted the writ on multiple

grounds, including the court's belief that Wilkins’ waiver

of counsel, his guilty plea, and his waiver of the right to

present mitigating evidence were not entered into

knowingly, intelligently, and voluntarily. Wilkins v.

Bowersox, 933 F.Supp. 1496 (W.D. Mo. 1996). We

affirm.

*The Honorable Scott O. Wright, United States

District Judge for the Western District of Missouri.

3

transferred in and out of mental health facilities. By the

age of 16, Wilkins was living on the streets with three

other teenagers.

On July 27, 1985, at the age of 16, Wilkins and

his three teenaged companions robbed a liquor store

and delicatessen in Avondale, Missouri, and committed

a murder during the court of the robbery. According to

their plan, which the record shows was primarily

formulated by Wilkins, one of the Wilkins’ companions

grabbed the woman working behind the counter, Nancy

Allen, and held her "ie Wilkins viciously inflicted

multiple, fatal stab wounds. A few weeks later, the

Kansas City Police Department arrested Wilkins and his

accomplices.

After questioning by the police, Wilkins confessed

to the murder and robbery. A juvenile court, after

denying a defense motion for a mental examination,

determined that Wilkins could be tried as an adult. At

the arraignment, Wilkins’ court-appointed counsel, Fred

Duchardt, entered pleas of not guilty and not guilty by

reason of mental disease or defect. Pursuant to that

plea, the Missouri trial court ordered Dr. Steven

Mandracchia, a psychologist at the Western Missouri

4

Mental Health Center, to examine Wilkins. Dr.

Mandracchia initially examined Wilkins on November

27, 1985, and concluded in his subsequent written

report that Wilkins was competent to stand trial and that

at the time of the offense, Wilkins was not suffering

from a mental disease cr defect within the meaning of

the Missouri statute. (J.A. at 908-14.)

In January 1986, Wilkins informed Mr. Ducharat

that he wished to be executed, which prompted Mr.

Duchardt to have Wilkins examined a second time. In

March 1986, Dr. William Logan, a psychiatrist at the

Menninger Foundation, examined Wilkins and found

that although Wilkins’ mental state at the time of the

crime did not meet the legal criteria for insanity under

Missouri law, he believed that Wilkins suffered from a

mental disease and that his mental functioning was

significantly impaired. (id. at 930.) Dr. Logan did not

make a conclusive finding regarding Wilkins’

competency to stand trial, but he wrote that "emotional

issues may prevent him from acting in his own best

interests." (id. at 928.)

On April 16, 1986, the Missouri trial court

conducted a competency hearing at which both Dr.

Mandracchia and Dr. Logan testified. Dr. Mandracchia

reiterated his earlier findings, explaining that he

interviewed Wilkins for approximately 95 minutes and

believed that he was competent to stand trial. Dr.

Logan's testimony was also consistent with his earlie7

report. He stated that Wilkins was “psychiatrically ill"

with a "plethora of mental difficulties” and was a "very

impulsive individual who really doesn't think through the

consequences of some of his decisions.” (id. at 627,

637.) Dr. Logan, however, did not make an express

finding regarding Wilkins’ competency to stand trial. At

the competency hearing, neither Dr. Mandracchia nor

Dr. Logan offered opinions on Wilkins’ capacity to make

a knowing, intelligent, and.voluntary decision to be

executed or to waive constitutional rights. At the

conclusion of the testimony, the court found Wilkins to

be competent to proceed to trial.

Immediately after the court judged Wilkins

competent to stand trial, Wilkins stated that he wished

to waive his right to counsel and proceed pro se,

because he desired to receive a death sentence and his

lawyer would not heip him get the death penalty. The

court postponed a determination on Wilkins’ request

and set a hearing date for one week later. On April 23,

1986, after some brief questioning by the court, the |

court accepted Wilkins’ waiver of counsel. The court

appointed Mr. Duchardt as "standby counsel” to act as ;

a resource person for Wilkins when and if Wilkins called

on him. Wilkins then informed the court that he wished

to plea guilty to all of the charges against him. The

court deferred action on the proposed guilty piea until

May 9, 1986.

At the May hearing, he court questioned Wilkins

regarding his decision to plead guilty and encouraged

him to accept the assistance of counsel. Wilkins

reiterated that he did not want the assistance of counsel!

and wished to plead guilty. The court accepted Wilkins’

pro se guilty pleas® and scheduled a sentencing hearing

for June 27, 1986.

At the sentencing hearing, he state presented

evidence of the crime and contended that because the

crime involved depravity of mind and was committed in

the course of a robbery, there were sufficient

circumstances to warrant the death penalty.

Wilkins continued to proceed pro se, through standby

counsel was present. Dr. Logan testified about Wilkins’

mental health background at sentencing, but Wilkins ©

objected to some of the mitigating circumstances thus

offered. The trial court sustained most of Wilkins’

objections. . Wilkins explained that he preferred the

death penalty over life in prison. At the conclusion of

the sentencing hearing, the court sentenced Wilkins to

death. He was 17. He took no steps to appeal his plea

or his sentence.

The Supreme Court of Missouri appointed the

State public defender as amicus curiae to brief and

argue “any issue subject to review" during the

mandatory statutory review of his death sentence.

Wilkins, acting as his own attorney, appeared personally

and told the Supreme Court of Missouri that he did not

want the assistance of an attorney, and he took issue

with some of the remarks made by the public defenders

’In addition to pleading guilty to first degree

murder, Wilkins pled guilty to unlawful use of a weapon

and armed criminal action. He was sentenced to life

imprisonment on the armed criminal action charge and

to five years' imprisonment for unlawful: use of a

weapon. The district court's decision in this habeas

case only addressed Wilkins' murder conviction and

death sentence. See Wilkins, 933 F.Supp. at 1501.

7

arguing the case. he also told the Supreme Court of

Missouri that his decision to seek the death penalty was

a rational one. Wilkins v. State, 802 S.W.2d 491, 496

(Mo. 1991) (en banc). After hearing and observing

Wilkins as he attempted to waive counsel at this

proceeding, the court ordered Dr. Sam Parwatikar, a.

psychiatrist with the Missouri Department of Health, to

examine Wilkins with respect to his competence to

waive counsel on appeal. After examining Wilkins, Dr.

Parwatikar conciuded that Wilkins was not capable of

waiving his right to counsel. Heeding Dr. Parwatikar's

determination, the Supreme court of Missouri set aside

its pnor proceedings and appointed counsel to represent

Wilkins despite his protestations. New briefs were filed

and the court heard arguments anew. Nevertheless,

the court affirmed Wilkins' conviction and death

sentence on a 4-3 vote at the conclusion of its direct

Statutory review. State v. Wilkins, 736 S.W.2d 409 (Mo.

1987) (en banc).

Less than one year later, on June 30, 1988,

Wilkins, who was then 19 years old, decided that he did

not want to be executed and filed a motion for

posiconviction relief pursuant to Missouri Rule of

Criminal Procedure 24.035 (1988), in an attempt to set

aside his conviction and sentence. Among other

Claims, Wilkins asserted that his waiver of counsel and

guilty plea were not knowingly and voluntarily made.

The sentencing court held a hearing regarding Wilkins’

motion from May 22 through May 26, 1989. At this

postconviction hearing, Wilkins, with the assistance of

appointed counsel, introduced the testimony of several

psychiatrists and psychologists who had examined him.

Dr. Dorothy Lewis, a professor psychiatry at the New

York University School of Medicine, explained that

Wilkins' paranoia motivated his decision to waive

counsel and that his thought processes were confused

and illogical throughout the former proceedings. (State

Postconviction Tr. at 27, 47-48.) Dr. William O'Connor,

a psychologist, testified that Wilkins’ guilty plea was not

a voluntary and intelligent decision, but rather an

emotionally-driver decision that was the product of his

mental disorder. (id. at 252.) Dr. Logan also testified

and agreed with Dr. Parwatikar's earlier conclusion that

Wilkins was not "competent" to proceed as his own

attorney, even though Dr. Logan was previously

ambivalent regarding Wilkins’ competence to stand trial.

Dr. Logan also believed that Wilkins' waiver of counsel

was an emotionally-charged impulsive decision. (Id. at

494.)

In response, the state called Mr. Duchardt ‘and

Dr, Mandracchia to testify. Mr. Duchardt stated he did

not believe that any of Wilkins’ decisions were made

knowingly, intelligently, and voluntarily. (id. at 642.) He

had consistently and forcefully made the same point in

the trial court's proceedings. Dr. Mandracchia

explained that his initial 95-minutes examination was

not designed io address the issue of whether Wilkins'

waiver of counsel and guilty plea were knowing,

intelligent, and voluntary. The postconviction court thus

ordered Dr. Mandracchia to perform an additional

evaluation of Wilkins that would be directed at these

issues. After conducting clinical interviews lasting over

seven hours, Dr. Mandracchia concluded that Wilkins’

waiver of counsel, guilty plea, and waiver of offering

mitigating evidence were made knowingly, but these

decisions were not made voluntarily or intelligently. (Tr.

of Resumed State Postconviction Hrg. at 893.) Dr.

Mandracchia explained that throughout the previous

State court proceedings at issue, Wilkins was not

capable of considering and appreciating his full range of

—-

|

|

options and believed that his only course of action was

to receive the death penalty. The postconviction court

simply rejected the uncontroverted evidence as

"unpersuasive." The postconviction court denied relief,

and the Supreme Court of Missouri upheld this decision

with one judge dissenting. Wilkins, 802 S.W-.2d at 501-

02.

Wilkins then filed his petition for a writ of habeas

corpus in federal court pursuant to 28 U.S.C. §2254,

alleging multiple grounds for relief. The district court

granted Wilkins’ request for an evidentiary hearing and

heard testimony in January 1996. Many of the same

doctors who previously testified in the state cour

proceedings appeared at the federal evidentiary hearing

and reiterated their previous findings, indicating that

Wilkins' decisions were not made intelligently or

voluntarily. Following the hearing, the district court

found that Wilkins did not knowingly, intelligently, or

voluntarily waive his right to counsel, enter his guilty

plea, or waive his right to offer mitigating evidence at

sentencing.* Thus, the district court conditionally

granted Wilkins’ petition for habeas corpus relief, which

will become a permanent grant of relief unless the state

commences proceedings to afford him a new trial within

“The district court also granted relief on two

additional grounds: (1) that the prosecutor had a conflict

of interest that violated Wilkins’ right to due process,

and (2) that the Supreme Court of Missouri's

proportionality review was performed in a manner that

also violated Wilkins’ due process rights. Because we

uphold the district court's decision to grant relief on the

waiver and guilty plea grounds, we find it unnecessary

to address the latter two issues.

10

60 days. The Respondent now challenges the district

"2 court's decision to grant habeas relief.

il.

A. Waiver of Counsel

We review the district court's legal conclusions

de novo and its factual findings for clear error. Miller v.

Lock, 108 F.3d 868, 870 (8th Cir. 1997). We defer to

a state court's findings of fact if they are fairly supported

by the record. Pryor v. Norris, 103 F.3d 710, 712-13

(8th Cir. 1997). See 28 U.S.C. §2254(d) (1994).

An accused has a constitutional right to self-

representation but must knowirgly, intelligently, and

voluntarily waive the right to counsel. Faretta_v.

California, 422 U.S. 806, 819-21, 835 (1975). See

Abdullah _v. Groose, 75 F.3d 408, 412 (8th Cir.), cert.

denied, 517 U.S. 1215 (1996). Whether a defendant

validly waived his constitutional right to counsel is not a

question of historical fact but a question requiring

“application of constitutional principles of the facts as

found,” Brewer v. Williams, 430 U.S. 387, 403 (1977)

(internal quotations omitted), which we review de novo.

Because the assistance of counsel is crucial to our

adversarial system of justice, courts must "indulge every

reasonable presumption against the waiver." Johnson

v. Zerbst, 304 U.S. 458, 464 (1938) (internal quotations

omitted), overruled in part on other grounds by Edwards

v. Arizona, 451 U.S. 477 (1981). To determine the

validity of a waiver of counsel, courts consider the

defendant's waiver in light of the totality of the

circumstances, "including the background, experience,

and conduct of the accused." Young v. Lockhart, 892

F.2d 1348, 1351 (8th Cir. 1989) (internal quotations

11

omitted). The Supreme Court has explained the

requirements for a valid waiver of counsel.

To be valid such waiver must be made

with an apprehension of the nature of the

charges, the statutory offenses included

within them, the range of allowable

punishments thereunder, possible

defenses to the charges and

circumstances in mitigation thereof, and

all other facts essential to a broad

understanding of the whole matter.

Von Moltke v. Gillies, 332 U.S. 708, 724 (1948)

(plurality). To validly waive counsel, a defendant must

actually understand ail of the relevant considerations;

thorough advice from the court alone is not sufficient.

See Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993);

United States v. Cash, 47 F.3d 1083, 1088 (11th Cir.

1995). Consequently, “[a] judge can make certain that

an accused's professed waiver of counsel is

understandingly and wisely made only from a

penetrating and comprehensive examination of all the

circumstances under which such a plea is tendered."

Von Moltke, 332 U.S. at 724 (plurality). The trial court

should not merely take the defendant's statement that

h is knowingly and intelligently waiving counsel “at face

value.” Wise v. Bowersox, 136 F.3d 1197, 1203 (8th

Cir. 1998).

The Respondent contends that the district court

erroneously found Wilkins’ waiver of counsel was not

knowing, intelligent, and voluntary without giving proper

deference to the state court's findings. We disagree.

The district court did not make any findings of historical

fact that conflict with the state court's findiags of

12

historical fact. In fact, the state court made no findings

of fact relevant to the waiver of counsel. The district

court's comprehensive review o the facts simply led it to

a legal conclusion regarding waiver of counsel that

differs from the state court's determination and

demonstrated that the state's court's's conclusion was

not fairly supported by the record.

Initially, we note that the state trial court's inquiry

to determine the validity of Wilkins’ waiver of his right to

counsel was not the kind of "penetrating and

comprehensive examination" required to ensure that an

accused's waiver of counsel is valid. Von Moltke, 332

U.S. at 724 (plurality). The court's colloquy with Wilkins

regarding his decision to waive counsel consisted

predominantly of leading questions that failed to allow

Wilkins to articulate his reasoning process. (See, €.0.,

J.A. at 648-49, 654-60, 675-694.) While Wilkins’ simple

"yes" and "no" answers indicated an intention to waive

his right to counsel, this does not conclusively establish

that his waiver of counsel was valid. A judge has an

obligation to penetrate the surface with a more probing »

inquiry to determine if the waiver is made knowingly,

intelligently, and voluntarily. See Von Moltke, 332 U.S.

at 724 (plurality). Wilkins did, however, make it very

clear to the trial court that the only attorney he would

even consider taking was one who would do everything

he could to clear Wilkins’ path to the gas chamber.

(J.A. at 657.) )

The record reveals that at no time did the state

court explain to Wilkins his possible defenses to the

charges against him, nor did the court inform him of

lesser included offenses or the full range of

punishments that he might receive. (See J.A. at 647-

95). | The Respondent asserts that the statements

13

made by Mr. Duchardt during this inquiry establish that

Wilkins did understand all of his potential defenses and

possible punishments. While Mr. Duchardt indicated to

the court that he had attempted to explain all of the

available options to Wilkins (see J.A. at 659-60, 652),

he testified that he never discussed lesser included

offenses or ranges of punishment with Wilkins and that

Wilkins did not give him an opportunity to explain all of

his potential options (see Postconviction Tr. at 640-43;

Dist. Ct. Evid. Hrg. Tr. at 87-88).

The state court also failed to adequately address

and consider Wilkins’ background in determining the

validity of his waiver of counsel. Relying on the

decision in Colorado v. Connelly, 479 U.S. 157, 164

(1986), the Respondent contends that a defendant's

mental condition and other personal characteristics are

not relevant to a determination of voluntariness unless

there is proof that the defendant was subjecied to

coercive pressures. The Respondent's reliance on

Colorado, is misplaced because that decision pertains

only to the voluntariness of confessions and the

application of the exclusionary rule to police conduct

during interrogations. In the waiver of counsel context,

we have explained that a defendant's background and

personal characteristics are highly relevant in

determining the validity of such a waiver. Young, 892

F.2d at 1351; see Edwards. 451 U.S. 482. Moreover,

the mental health of a defendant is also a relevant

consideration in assessing whether a waiver of counsel

was knowing, intelligent, and voluntary. See Cash, 47

F.3d at 1088. While a findings of coercion bears upon

the voluntary aspect of the waiver, it is not a necessary

prerequisite to reach the conclusion that a waiver was

not made knowingly, intelligently, and voluntarily.

14

In the present , while the state trial court

briefly addressed Wilkins’ youth and limited educational

background (J.A. at 649), the court took no account of

Wilkins’ upbringing. The record is

Wilkins was severely abused as a child by his mothe

and her boyfriends, that he had a history of drug abuse,

and that by the age of 10, he had been in and out of

mental health facilities and had: been described as

record evidence of his severely traubled childhood, the

state trial court's colloquy with Wilkins was far from the

kind of in-depth inquiry that is necessary to ensure a

valid waiver of counsel.°

The state trial court erroneously believed that its

previous finding that Wilkins was competent to stand

trial was alone sufficient to mandate a conclusion that

Wilkins’ waiver of counsel was valid. (See J.A. at 650.)

We believe this legal error also invaded the direct

review proceedings in the Supreme Court of Missouri.

See Wilkins, 736 S.W.2d at 415 (holding that “a finding

of competency necessarily entails the ability to waive

certain rights"). It also permeated the postconviction

court's conclusion. (Resp. Ex. G, at 92 ("The court

5We reject out of hand the Respondent's

assertion that our evaluation of the state trial court's

inquiry regarding the validity of Wilkins’ waiver of

counsel constitutes a new constitutional rule that may

not be applied retroactively under the holding of Teague

v. Lane, 489 U.S. 288 (1989). Fifty years ago, in Von

Moltke, 332 U.S. at 724 (1948) (plurality), the Supreme

Court established the requirement that a judge's inquiry

regarding waiver of counsel must be comprehensive

and probing.

15

concludes that he finding of competency of movant to

proceed entailed the ability to waive certain rights and

to make [the] decision to enter [a] plea of guilty and

under the circumstances of this case to waive counsel

and proceed pro se.")) It is true that the level of

competency required to waive the right to counsel is the

same as that required to stand trial. Godniz v. Moran,

509 U.S. 389, 398 (1993); Branscomb v. Norris, 47 F.3d

258, 263 (8th Cir.), cert. denied, 515 U.S. 1109 (1995).

The Supreme Court has clarified, however, that a valid

waiver of counsel requires more than competency to

stand trial. The trial court must also “satisfy itself that

the waiver of his constitutional rights is knowing and

voluntary.” Godinez, 509 U.S. at 400. The Court

further explained that the competency inquiry focuses

on whether a defendant "has the ability to understand

the proceedings" while the knowing and voluntary

inquiry is aimed at determining "whether the defendant

actually does understand the significance and

consequences of a particular decision and whether the

decision is uncoerced." id. at 401 n.12. Relying on

settled law, the Court explained, "In this sense there is

a ‘heightened’ standard for pleading guilty and for

waiving the right to counsel, but it is not a heightened

standard of competence." Id. at 400-401. The state

court committed legal error by concluding that Wilkins’

waiver was valid merely because he had been found

competent to stand trial. In the postconviction

proceeding, the Supreme Court of Missouri articulated

the proper standard (that a waiver must also be

knowing, intelligent, and voluntary), but affirmed the

denial of relief by emphasizing Wilkins’ competence, the

trial court's opportunity to observe Wilkins, and Wilkins’

use of standby counsel "when it met his purposes."

Wilkins, 802 S.W.2d at 501-02. These elements,

16

= Bly ea S sei lts SAAS

Lao Pini

however, do not necessarily lead to the conclusion that

Wilkins voluntarily and intelligently waived counsel.

The uncontroverted record as a whole throughout

the state proceedings indicates that Wilkins’ waiver of

counsel was not knowing, intelligent, and voluntary.

The state court accepted Wilkins’ waiver of counsel

without making findings of fact and without explicitly

concluding that Wilkins' waiver was made knowingly,

intelligently, and voluntarily. The record before the state

trial court simply does not support the conclusion that”

Wilkins. had the requisite level of understanding

necessary to establish that his waiver of counsel was

knowing, intelligent, and voluntary. In addition to not

being informed of all of his potential options, the

evidence overwhelmingly indicates that Wilkins’ state of

mind precluded him from making a valid waiver of

counsel. As early as the-first competency hearing, Dr.

Logan testified to the numerous mental and emotional

problems that interfered with Wilkins’ "decision making

process at certain critical points." (J.A. at 627.) Dr.

Logan described Wilkins as "a very impulsive individual

who really doesn't think through the consequences of

some of his decisions." (id.) Dr. Logan also indicated

that Wilkins’ upbringing was devoid of "supervision or .

tutoring or guidance in terms of how to use his mind to

make rational common sense decisions." (id. at 629.)

On direct review in state court, the Supreme -

Court of Missouri ordered Dr. Parwatikar to perform a

psychiatric evaluation of Wilkins for the purpose of

determining Wilkins’ capacity to waive the right to

counsel on review before that court. He testified at the

postconviction hearing that in his opinion, Wilkins was

not capable of waiving the right to counsel at the time

of his origina! waiver of counsel and guilty plea. (State

17

~

Postconviction Tr. at 849-50.) Dr. Parwatikar attributed

Wilkins’ inability to validly waive counsel to his mental

disorders and upbringing and informed the court that

Wilkins was also unable to waive counsel on direct

appeal. Acting on Dr. Parwatikar's recommendation,

the Supreme Court of Missouri most tellingly refused to

permit Wilkins to proceed pro se; it appointed counsel

to represent Wilkins on direct review, despite Wilkins’

persistent and professed desire to waive counsel! at its

proceeding as well. ?

At the state postconviction hearing, the

uncontroverted testimony of the several doctors who

had examined Wilkins all indicated that he was mentally

disturbed and that his decisions to waive counsel and

plead guilty were the product of his mental iliness and

immaturity and not rational decision making. Or. Logan,

who for the first time was then addressing the vaiidity of

Wilkins’ waiver, stated that Wilkins’ decision did not

make sense and was impulsive. Moreover, the

postconviction court instructed the state's own witness,

Dr. Mandracchia, to conduct an additional evaluation

after Dr. Mandracchia revealed during the

postconviction hearing that his initial examination was

not directed at Wilkins’ waiver of counsel but at whether

Wilkins met the stizutory competency requirements to

stand trial. After turther evaluation, Dr. Mandracchia

unequivocally stated that Wilkins’ waiver of counsel,

while done knowingly, was not made intelligently or

voiuniarily. (Tr. of Resumed State Postconviction Hrg.

at 893.) The state court made no fact-findings to

indicate why it was unpersuaded by the unanimous

testimony presented at the postconviction hearing, and

the record simply does not support the state court's

conclusion that Wilkins knowingly, intelligently, and

voluntarily waived his right to counsel.

18

Similar evidence was adduced at the federal

evidentiary hearing. Dr. Logan appeared once again

and explained that Wilkins was driven by an “internal

coercion” that prevented him from voluntarily or

intelligently waiving his right to counsel. Wilkins, 933

F.Supp. at 1513. After considering the entire record,

we conclude that the district court did not err in finding

that Wilkins’ waiver of counsel was not made knowingly,

intelligently, and voluntarily.

Relying chiefly on the Supreme Court's decision

in Drope_v. Missouri, 420 U.S. 162 (1975), the

Respondent argues that all of the expert testimony

submitted after Wilkins’ waiver of counsel is not relevant

to a determination of the validity of the waiver. in

Drope, the issue was whether the trial court sua sponte

should have suspended trial until a competency

evaluation of the defendant could be made. The

Supreme Court noted in a footnote that the after-the-

fact testimony of psychiatrists submitted in a

postconviction hearing was not relevant to this

determination. See Drope, 420 U.S. at 181 & n.17;

James v. Singletary, 957 F.2d 1562, 1569-71 (11th Cir.

1992) (discussing Pate v. Robinson, 383 U.S. 375

(1966), upon which Drope heavily relies). Additionally,

we have indicated that "[rjetrospective determinations of

whether a defendant is competent to stand trial or to

plead guilty are strongly disfavored.” Weisberg v. State

of Minnesota, 29 F.3d 1271, 1278 (8th Cir. 1994), cert.

denied, 513 U.S. 1126 (1995). The context of the

present case, however, differs significantly from the

circumstances in either Drope or Weisberg. In those

cases, the defendant attempted to attack his

competence to stand trial or to plead guilty without ever

having had the benefit of a contemporaneous

competency hearing. in the present case, Wilkins’

19

competency to stand trial (the same level of

competency being required to waive counsel) was

contemporaneously evaluated, with a focus on whether

Wilkins met Missouri's statutory definition of

competency, and it is not now at issue. Those

contemporaneous evaluations raised immediate, well-

founded concern about Wilkins' ability to make a

knowing, intelligent, and voluntary waiver, though not —

specifically addressing that subject. Dr. Logan's

contemporaneous evaluation acknowledged in particular

the existence of Wilkins’ mental and emotional problems

as well as-the limitations those problems might impose

on his ability to make rational decisions. Thus, the

subsequent testimony of the same doctors is not the

type of after-the-fact speculation of concern in Drope

and Weisberg. Given the state trial court's failure to

make a probing inquiry in spite of the extensive

evidence of Wilkins’ background, which had been in the

record since the competency hearing, the district court

did not err by considering the entire state court record.

B. Guilty Plea and Waiver of Mitigating Evidence

The Respondent asserts that the district court

erred in granting Wilkins relief on the claims that his

guilty plea and waiver of the right to present mitigating

evidence were not made knowingly, intelligently, and

voluntarily. Initially, the Respondent contends that

Wilkins only raised the issue of his competence in state

court and procedurally defaulted these other claims by -

failing to raise them in the state courts’. We disagree.

The record indicates that Wilkins raised these issues in

the state postconviction court and the appeal of that

decision in the Supreme Court of Missouri, specifically

asserting that his guilty plea and waiver of the right to

present mitigating evidence were not knowing,

20

intelligent, and voluntary decisions. Wilkins did not

procedurally default these claims.

| We also believe that the district court correctly

concluded that Wilkins’ guilty plea and waiver of

presenting mitigating evidence were not knowing,

intelligent, and voluntary. To be valid, a guilty plea

must represent “a voluntary and intelligent choice

among the alterative courses of action open to the

: defendant," North Carolina v. Alford, 400 U.S. 25, 31

) (1970), and the defendant must "possess [ ] an

understanding of the law in relation to the facts."

McCarthy v. United States, 392 U.S. 459, 466 (1969).

We find that Wilkins’ guilty plea and waiver of

presenting mitigating evidence were not valid for

essentially the same reasons that lead us to conclude

that his waiver of counsel was not valid.

Initially we note that Wilkins’ conclusory

affirmation that he was pleading guilty voluntarily does

not establish definitively that his plea was in fact valid.

See Von Moltke, 332 U.S. at 724; Gonzales _v.

Grammar, 848 F.2d 894, 900 (8th Cir. 1988). As

demonstrated above, the record indicates that Wilkins’

youth, troubled background, and substantial mental

impairments clouded his decision-making throughout the -

state proceedings. At the state postconviction hearing,

Dr. Mandracchia directly stated his opinion that neither

Wilkins’ guilty plea nor his waiver of presenting

mitigating evidence were intelligent or voluntary.

Moreover, the record does not establish that Wilkins

possessed the required "understanding of the law in

relation to the facts." Mccarthy, 394 U.S. at 466. As

mentioned earlier, the state court did not discuss

possible defenses such as diminished capacity; the

court failed to inform Wilkins of possible lesser included

21

Offenses such as second degree murder and

manslaughter; and the court did not explain the full

range of potential sentences that Wilkins could receive.

The court limited its discussion of sentences to the

death penalty and life imprisonment without parole.

(J.A. at 676, 682, 695-96.) The court's omission of

other potential sentences is quite significant in light of

Wilkins’ statement to the court that he did not absolutely

wish fr the death penalty but merely preferred it over

spending the rest of his life in prison. (See J.A. 791-

92.) Additional reports from Dr. Mandracchia indicate

that Wilkins did not understand his legal alternatives.

Dr. Mandracchia stated that Wilkins "would not, and—

functionally, could not, meaningfully entertain

possibilities such as acquittal, insanity defense,

conviction for a lesser included offense, mitigating

circumstances, parole following a _ period of

incarceration, etc." (Appeliee's Br. at 14, citing Ex. P-33

at 4.) In light of this evidence, we conclude that the

district court properly determined that Wilkins did not

knowingly, intelligently, and voluntarily plead guilty and

waive his right to present mitigating evidence.

C. Evidentiary Hearing a

The Respondent claims that the district court

erred in holding an evidentiary hearing. The

Respondent asserts that the district court's decision to

hold an evidentiary hearing stems from Wilkins’ failure

to fully develop the facts in the state courts and that the

district court impermissibly expanded the record. We

disagree. The district court held the evidentiary hearing

because in its view the state courts had failed to make

factual findings on certain issues, ignored the facts with

respect to certain issues, and arrived at coriclusions

that were not supported by the record. Wilkins, 933

22

F.Supp. at 1504-05. Although the district court was not

required to hold a hearing in this case, it exercised its

discretionary power in an effort to resolve the

deficiencies it found in the state court findings. See

Townsend v. Sain, 372 U.S. 293, 318 (1963) (stating

that in every case, a district judge ‘has the power,

constrained only by his sound discretion, to receive

evidence bearing upon the applicant's constitutional

claim"), overruled in part, Keeney v. Tamayo-Reyes,

504 U.%. 1 (1992) (holding habeas petitioner has no

right to hearing to develop facts not developed in state

court proceeding, absent a showing of cause and

prejudice). See also Clemmons v. Delo, 124 F.3d 944,

952 (8th Cir. 1997) (noting that the Supreme Court's

decision in Keeney v. Tamayo-Reyes did not alter a

court's discretionary power to order an evidentiary

hearing), cert. denied, 118 S.Ct. 1548 (1998); Jamison

v. Lockhart, 975 F.2d 1377, 1381 (8th Cir. 1992)

(same). The district court did not abuse its discretion in

holding such a hearing in this case.°

®Because we find the Respondent's assertion

that the petitioner failed to develop the factual record

in the state court to be erroneous, we need not

decide whether the new statutory provisions

concerning when a district court can hold such an-

evidentiary hearing added to §2254 by the

Antiterrorism and Effective Death Penalty Act of 1996,

signed into law on April 24, 1996, apply to this case.

See 28 U.S.C. §2254(e)(2) (as amended) ("If the

applicant has failed to develop the factual basis of a

claim in the State court proceedings, the court shall

not hold an evidentiary hearing on the claim unless

the applicant shows ...."). We note the evidentiary

hearing in this case was held some four months

before the Act was signed into law. See also Lindh v.

23

D. Jurisdiction to Vacate Previous Order

Finally, the Respondent contends that the district

court erred by vacating its previous order dated May 16,

1995, granting relief on only one of Wilkins’ claims, after

our court remanded the case "for resolution of all

matters contianed in the first amended petition for writ

of habeas corpus.” (J.A. at 976.) Rule 60(b) of the

Federal Rules of Civil Procedure affords district courts

much discretion to vacate their orders. See Tungseth

v. Mutual of Omaha ins. Co., 43 F.3d 406, 409 (8th Cir.

1994). The district court did not abuse its discretion or

exceed the scope of the remand order by choosing to

decide all of Wilkins’ claims in a single order. Similarly,

we reject he Respondent's assertion that Wilkins’.

challenge to the validity of his waiver of counsel

constitutes an abuse of the writ. The Respondent's

abuse-of-the-writ claim hinges upon the argument that

the district court exceeded its jurisdiction by vacating its

previous order. Because the district court had the

authority to vacate its previous order and consider all of

Wilkins' claims together, we reject as meritless

Respondent's assertion that Wilkins has abused the

writ.

In sum, we affirm the judgment of the district

court, conditionally granting relief On Wilkins’ claims that

Murphy, 117 S.Ct. 2059, 2067 (1997) ("The provision

[28 U.S.C. §2264(b) contained in new Chapter 154]

thus confirms that Congress assumed that in the

absence of such a provision, §§2254(d) and (e) (as

new parts of Chapter 153) would not apply to pending

federal habeas cases.")

24

his waiver of his right to counsel, his guilty plea, and his

waiver of the right to present mitigating evidence were

not made knowingly, intelligently, and voluntarily. Given

our decision to uphold the grant of relief on these

claims, we find it unnecessary to review the merits of

Wilkins’ additional arguments.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.

25

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

HEATH A. WILKINS,

Petitioner,

)

)

}

vs. ) No. 91-0861-CV-W-5

)

)

)

)

This is a petition for writ of habeas corpus under

28 U.S.C. §2254 by Heath A. Wilkins (petitioner), an

inmate in custody at Potosi Correctional Center, Potosi,

Missouri. The petitioner seeks to vacate his conviction

for first degree murder and sentence of death entered

by the Circuit court of Clay County, Missouri after

petitioner waived counsel and entered a guilty plea. '

Background

‘The original named respondent in this action

was Paul Delo, who was Superintendent of the Potosi

Correctional Center when the petition was filed. Since

then, Michael Bowersox has replaced Mr. Delo as

Superintendent and thus has been substituted as the

named respondent. For purposes of simplicity, the

Court will refer to the respondent as "the State."

26

in the summer of 1985, Petitioner, who was then

sixteen years old, lived in a public park in Kansas City

with three other teenagers, Marjorie Filipiak, Patrick

Stevens and Ray Thompson. The four of them planned

and carried out the robbery of a liquor store in

Avondale, Missouri, on July 27, 1985. According to the

plan, Marjorie Filipiak went to the nearby North Kansas

City Hospital and called a cab while the three boys went

to the liquor store. Ray Thompson stayed outside the

store to act as lookout, and Petitioner and Patrick

Stevens went inside the store to rob it. During the

robbery, Petitioner fatally stabbed the proprietor of the

store, Nancy Allen, as Stevens held her.

Acting on an anonymous tip, Kansas City police

arrested Petitioner and his associates in the park on

August 10, 1985. After questioning by the police,

Petitioner confessed to the murder and robbery.

Because of his age, a hearing was conducted to

determine whether he would be tried as an adult. Fred

Duchardt, the Clay County Public Defender, was

appointed to represent Petitioner at the hearing. After

denying counsel's request for a mental examination, the

juvenile court on August 15, 1985, entered an order

allowing Petitioner to be tried as an adult.

Petitioner was charged as an adult with the

offenses of unlawful use of a weapon, first degree

murder and armed criminal action. At arraignment in

the Clay County Circuit Court, counsel entered the

alternative pleas of not guilty and not guilty by reason

of mental disease or defect on Petitioner's behalf.

Pursuant to that plea, the court ordered a mental

examination of Wilkins. Steven A. Mandracchia, Ph.D.,

a psychologist at Western Missouri Mental Health

Center, examined Wilkins in November, 1985.

27

In January, 1986, Mr. Duchardt visited petitioner

in the Clay County jail. At that time, petiticner told Mr.

Duchardt that he wished to be executed. A second

examination was performed in March, +386 by William

A. Logan, M.D., a psychiatrist with the Menninger

Foundation.

A competency hearing was held on Wednesday,

April 16, 1986. Dr. Mandracchia testified that he did not

believe petitioner had a mental disease or defect "as

defined by" Missouri statute. He gave no opinion

whether petitioner had a mental disease or disorder

outside of the statutory definition, except that he

“agree[d] with the past treatment records and past

psychiatric and psychological diagnoses.” Dr.

Mandracchia concluded that petitioner was "competent

to proceed”. Although Dr. Mandracchia was not aware

of petitioner's desire to be executed when he conducted

his examination, he testified at the hearing that this fact

did not alter his conclusion regarding petitioner's

competency to proceed.

Dr. Logan testified that petitioner was

“psychiatrically ill" with a "plethora of mental difficulties”.

However, he did not give an opinion on petitioner's

competency to proceed because he interpreted Missouri

law to require a psychotic disorder. Dr. Logan stated

that although petitioner had no cognitive deficits, his

emotional disabilities "could interfere with his decision-

making process at certain critical points." Mr. Duchardt

insisted that there was "considerable question" about

petitioner's competency. Over Mr. Duchardt's proiests,

the court found him competent to proceed.

28

Mr. Wilkins then informed the court that he

wanted to be sentenced to death. He also stated that

he wanted to waive counsel because Mr. Duchardt

would not help him get the death penalty. Counsel

again reiterated his belief that petitioner was not acting

competently. The court deferred action on Petitioner's

request until a hearing the following week. On April 23,

1986, the court accepted the waiver of counsel.

Petitioner immediately asked to plead guilty to all

charges and be executed. After a brief hearing two

weeks later, the court accepted petitioner's pro se guilty

plea on May 9, 1986 and a sentencing hearing was

held on June 27, 1986. The State presented evidence

of the crime and testimony by Dr. Mandracchia and Dr.

Logan. Petitioner objected to any evidence of his

mental disorders that could be construed as mitigating

and joined in the State's request for the death penalty.

The court found that the murder was wantonly vile,

horrible or inhuman because it involved depravity of

mind, and that the murder was committed in the course

of a robbery. Then the court sentenced petitioner to

death.

The sentence was reviewed by the Missouri

Supreme Court pursuant to Mo. Rev. Stat. §565.035

(1986). The Office of the Public Defender was

appointed to act as amicus curae for petitioner on the

“appeal”. At oral argument, Mr. Wilkins appeared

personally before the Missouri Supreme Court, repeated

his wish to be executed and requested that amicus

counsel be discharged. The court ordered Sam

Parwatikar, M.D., a psychiatrist with the Missouri

Department of Mental Health, to examine petitioner to

determine his “competence to waive counsel" on

appeal. Dr. Parwatikar concluded that Petitioner "was

29

not capable of waiving his constitutional _ to

counsel.”

Amicus counsel then moved to remand the

matter to the Circuit Court for an evidentiary hearing on

Wilkins' mental competence and waiver in light of Dr.

Parwatikar's findings. The State objected, arguing that

the review was limited to the statutory criteria in

§565.035. The Missouri Supreme Court denied the

motion for remand and appointed the Public Defender

to act as counsel for Petitioner.

The Missouri Supreme Court affirmed Petitioner's

conviction and sentence on direct statutory review,

State v. Wilkins, 736 S.W.2d 409 (Mo. banc 1987), with

Justices Blackmar, Donnelly and Welliver dissenting on

proportionality grounds. Judge Donnelly also wrote

separately that proportionality was the only issue

properly before the court. On June 30, 1988, the

United States Supreme Court granted certiorari to

decide whether the execution of a sixteen-year-old

offender per se violates the cruel and unusual

punishment clause of the Eighth Amendment, and

eventually heid that it did not. Stanford v. Kentucky,

492 U.S. 361 (1989). ~

On the same day that the Supreme Court

granted certiorari, petitioner filed a motion in the

sentencing court pursuant to Mo.R.Crim.P. 24.035 to

set aside his convictions and sentences. By that time,

petitioner was nineteen years old and did not aspire to

be executed. Counsel was appointed to represent

Petitioner and a hearing on Wilkins' motion was heid

May 22-26, 1989. Dorothy Lewis, M.D., Jonathan

Pincus, M.D., and William O'Connor, Ph.D., conducted

testing and clinical interviews and concluded that

30

Wilkins suffers from schizoaffective disorder, a mental

disease which rendered him incompetent to proceed at

the time of his plea. Dr. Logan also testified that had

he been asked to respond to the question posed in the

Missouri Supreme Court's order to Dr. Parwatikar, he

would have concurred with Dr. Parwatikar -- that Wilkins

was not "competent" to proceed as his own attorney.

The State called Mr. Duchardt and Dr.

Mandracchia. Mr. Duchardt again stated that he

believed that Wilkins was not competent at the time of

his plea dn sentencing hearing. Dr. Mandracchia

testified that he would need to perform an additional

examination of Petitioner to respond to the State's

question about Wilkins’ "competence to waive" counsel.

Claiming surprise at Dr. Mandracchia's testimony, the

State requested a mental evaluation by Dr.

Mandracchia to determine whether petitioner was

"competent to waive" his constitutional rights and plead

guilty and whether petitioner's waiver of counsel and

guilty plea were in fact knowing, intelligent and

voluntary. After conducting the court-ordered

supplemental examination, Dr. Mandracchia testified

that the waiver of counsel, guilty plea and waivers of

other constitutional rights were not intelligent and

voluntary. Nevertheless, the hearing court denied the

motion and the Missouri Supreme Court affirmed.

Wilkins v. State, 802 S.W.2d 491 (Mo.) cert. denied

Wilkins v. Missouri, 112 S.Ct. 131 (1991). 7

Petitioner then filed the Petition for Writ of

Habeas Corpus currently before this Court. The First

Amended Petition alleged thirteen grounds of

constitutional error. On May 16, 1995, this Court

entered an Order conditionally granting the Writ on one

of Petitioner's claims on the basis of the state court

31

record, without an evidentiary hearing. The Court also

considered and denied one other claim, but did not

address the eleven remaining claims. After filing a

timely notice of appeal, the State requested the Court

of Appeals for the Eighth Circuit to remand the case to

this Court of resolution of all remaining claims. The

motion was granted on October 3, 1995.

After remand, Petitioner renewed his previous

request for an evidentiary hearing. Over the State's

objections, this Court heard testimony on January 5 and

30, 1996. Petitioner then voluntarily dismissed several

claims. On April 23, 1996, this Court set aside the

previous Order of May 16, 1995 pursuant to

Fed.R.Civ.P. 60(b)6). The six claims remaining in the

Amended Petition will now be considered. The facts

relevant to each will be outlined as necessary. For the

reasons set forth below, the petition will be granted.

Evidentiary Hearing

After the remand from the Court of Appeals, this

Court exercised its power to hold an evidentiary hearing

on dispositive factual issues in the amended petition.

The Court's broad authority to do so is well-estabiished

under Townsend v. Sain, 372 U.S. 293 (1963). In

Townsend, the Supreme Court heid that district courts

always have the discretion to hold evidentiary hearings

on dispositive factual issues in habeas litigation: “In

every case, [the district court] has the power,

constrained only by his sound discretion, to receive

evidence bearing upon the applicant's constitutional

claim." Id., 372 U.S. at 318.

In reliance on Keeney v. Tamayo-Reyes, 112

S.Ct. 1715 (1992), the State asserts that the hearing

aa”

32

was not authorized. The standard adopted in Keeney

to limit mandatory hearings in certain situations,

however, does not purport in any way to limit a habeas

court's prerogative to hear additional evidence if there

is a factual dispute on nonfrivolous claims. €.9.

Jamison v. Lockhart, 975 F.2d 1377, 1381 (8th Cir.

1992) ("we do not read Tamayo-Reyes as altering our

discretionary power to order this hearing"); Pagan v.

Keane, 984 F.2d 61, 64 (2d Cir. 1993); Burden v. Zant,

975 F.2d 771, 775 (11th Cir. 1992) rev'd on other

grounds 530-U.S. 132 (1994); Sims v. Livesay, 970

F.2d 1575 (6th Cir. 1992). See Yohn v. Love, 76 F.3d

508, 516 (3d Cir. 1996).

The Court also believes that a hearing may have

been mandatory. Under Townsend, a federal district

court must hold an evidentiary hearing in six situations,

including some circumstances in which the state courts

previous held a hearing and made fact findings.

Townsend, 372 U.S. at 313.2 Although it is not

necessary to thoroughly examine the Townsend

requirements now becuase there was a discretionary

hearing, the Court notes that the first two circumstances

2A hearing is mandatory if: (1) the merits of the

factual dispute were not resolved in the state court

hearing; (2) the state factual determination is not

supported by the record as a whole; (3) the fact-finding

procedure employed by the state court was not

adequate to afford a full and fair hearing; (4) there is a

substantial allegation of newly discovered evidence; (5)

the material facts were not adequately developed at the

state court hearing or (6) if for any reason it appears

that the state trier of fact did not afford the habeas

applicant a full and fair fact hearing. Townsend, 372

U.S. at 313-319.

33

in Townsend may have compelled it in this case: (1) the

merits of many dispositive facts were not resolved in the

state court hearing; and (2) the state courts’

determinations on some facts are not supported by the

record as a whole.

Again, the State's objection based on Keeny v.

Tamayo-Reyes is not persuasive. The limitaton on

mandatory hearings imposed by Keeney has no

relevance here. Keeney overruled Townsend only in

part. It held that a hearing is not mandatory under

Townsend's fifth circumstance ("the material facts were

not adequately developed at the state court hearing")

unless the petitioner can show cause for failing to

develop the material facts in the state court and

prejudice resulting therefrom or actual innocence

Keeney, 112 S.Ct. at 1719. Petitioner did not fail to

develop the material facts in this case. The

determinative evidence was presented to the state

courts.

*On Aprii 29, 1996, the State filed a motion to

preciude consideration of all evidence presented at

the hearing in this Court on the basis the April 24,

1996 amendment to 28 U.S.C. §2254(e)(2), which

provides:

"If the applicant has failed to develop the

factual basis of a claim in State court proceedings,

the court shall not hold an evidentiary hearing on the

claim unless the applicant shows that (a) the claim

relied on (i) a new rule of constitutional law, made

retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been

previously discovered through the exercise of due

diligence; and (B) the facts underlying the claim would

34

After an exhaustive review of the entire file, this

Court found that many disputed factual issues were not

settled and some findings by the state courts were

perplexing. The state record contains ambiguous or

contradictory support for certain findings and

conclusions, particularly those related to the claims

a hearing, the Court elected to hear additional evidence. ‘

1990). The facts left unresolved by the state courts and

the disputable findings will be set forth as necessary in

the section of the Order addressing the individual claims

for relief.

Presumption of Correctness of State Court

Findings

An issue distinct from the power to hold an

evidentiary hearing is whether this Court is bound by

the state courts’ findings on dispositive factual

questions. Under 28 U.S.C. §2254(d), a state court's

be sufficient to establish by clear and convincing

evidence that but for constitutional error, no

reasonable fact finder would have found the applicant

guilty of the underlying offense.”

This Court need not determine whether this

provision applies retroactively to the evidentiary

hearing this court heid in January, 1996. Again, this

limitation on evidentiary hearings in a federal habeas

court applies where a petitioner failed to develop facts

in state court, which did not happen in this case.

35

factual finding is entitled to a presu

correctness unless one of seven factors in

§2254(d)(1)-(7) is present or unless the factual finding

“is not fairly supported by the record”. ‘

*28 U.S.C. §2254(d) provides in part:

In any proceeding . . . in a Federal court .. . for a writ

of habeas corpus by a person in custody pursuant to

the judgment of a State court, a determination after a

hearing on the merits of a factual issue, made by a

State court of competent jurisdiction. .. evidenced by

. adequate written indicia, shall be presumed to be

correct, unless the applicant shall establish or it shall

otherwise appear, or the respondent shall admit

(1) that the merits of the factual dispute were

not resolved in the State court hearing;

(2) that the fact finding procedure employed by

the State court was not adequate to afford a full and

fair hearing;

(3) that the material facts were not adequately

developed at the State court hearing;

(4) that the State court lacked jurisdiction of the

subject matter or over the person of the applicant in

the State court proceeding;

(5) that the applicant was an indigent and the

State court, in deprivation of his constitutional right,

failed to appoint counsel to represent in the State

court proceeding;

(6) that the applicant did not receive a full, fair,

and adequate hearing in the State court proceeding;

or

(7) that the applicant was otherwise denied due

process of law in the State court proceeding;

(8) or unless . . . the Federal court on a

consideration of the record as a whole concludes that

such a factual determination is not fairly supported by

36

This Court is also aware of the changes in the

presumption of correctness standard set out in the

amendment to §2254 which was signed into law on

April 24, 1996.° However, the new statute does not

case. [Clongressional enactments will not be

construed to have retroactvie application unless their

language this result.”

Bowen v. Georgetown

A 488 U.S. 204, 208 (1988). At least one

district court has already rejected the state's position:

Although certain provisions of Title | of the

Antiterrorism and Effective Death Penalty

Act of 1996 contain specific effective

dates, neither the Act as a whole nor the

amendmerits to §2254 contains such a

date. See, Chapter 154, 28 U.S.C.

§266(c). In contrast to Congress’ silence

with respect. to the effective dates of the

amendments to §2254, Chpater 154,

which applies only to capital cases,

contains a specific effective date

provision. See, 28 U.S.C. §2266(c)

- (stating that “Chapter 154 of title 28,

the record.

®That statute, 28 U.S.C. §2254(e)(1), provides:

"In a proceeding instituted by an application for a writ

of habeas corpus by a rerson-in custody pursuant to

the judgment of a State court, a determination of a

factual issue made by a State court shall be

presumed to be correct. The application [sic] shall

have the burden of rebutting the presumption of

correctness by clear and convincing evidence.

37

United States Code (as amended by

subsection (a)) shall apply to cases

pending on or after the date of enactment

of this Act.") The relevant legislation

contains no language indicating that

Congress intended the amendments to

§2254 to apply to cases such as

Petitioner's. The inclusion of language in

Chapter 154 to the effect that the

provisions in Chapter 154 "apply to cases

pending on or after the date of enactment

of this Act" indicates that Congress knows

how to indicate that new legislation

applies to pending cases when it intends

to do so. The absence of. similar

language in the amendments to §2254

indicates that Congress only intended for

such amendments to apply prospectively.

Schlup v. Bowersox, No. 4:92CV443, slip op. at 16-17

(E.D. Mo. May 2, 1996). This Court agrees with this

sound analysis regarding the retroactivity of this portion

of the new legislation.

Moreover, even if the revised provision

§2254(e)(1) did apply, there are certain relevant legal

doctrines preliminary to §2254(d) or §2254(e)(1) which

are not affected by the new statute. The threshold

question is what constitutes a “factual” finding, as

opposed to a “mixed” question or a purely legal

question. Further, common sense dictates that the firs!

exception to the presumption of correctness under

§2254(d) -- that the "merits of the factual dispute were

not resolved in the state court hearing" -- would

continue under the new statute. Here, this Court

decides questions of law and decides factual issues not

38

resolved by the state courts even though the evidence

had been developed there. The end result thus is the

same, regardiess of which statute applies.

Where factual determinations were made in the

state court here, this Court affords a "high measure of

deference." Sumner v. Mata, 455 U.S. 591, 598 (19682).

"This deference requires that a federal habeas court

more than simply disagree with the state court before

rejecting its factual determinations. Instead, it must |

conclude that the state court's findings lacked even fair

support in the record." Marshall v. Lonberger, 459 U.S.

422, 429 (1983).

Further, §2254(d) prvoides that even if the

presumption applies, a habeas petitioner may rebut the

presumption by establishing "by convicing evidence that

the factual determination by the state court was

erroneous". Such convincing evidence includes proof

presented “at an evidentiary hearing. . . in the federal

court." See Demosthenes v. Baal, 494 U.S. 731, 735

91990); Lahay v. Armontrout, 923 F.2d 578 (8th Cir.

1991). Under the new §2254(e)(1), the standard for

rebuttal is essentially the same: by “clear and

convincing evidence".

_ Section 2254(d) applies only to the state court's

findings of historical facts. Legal conclusions are not

entitled to deference on federal habeas corpus review.

Wright v. West, 112 S.Ct. 2482 (1992); Sumner, 455

U.S. at 597; Brown v. Allen, 344 U.S. 443 (1953). This

Court is also free to conduct an independent review of

"so called mixed questions of fact and law which require

the application of a legal standard to the historical fact

determinations." Thompson v. Keohane, 116 S.Ct. 457,

459 (1995); Cuyler_v. Sullivan, 466 U.S. 335, 342

39

(1980); Jones v. Jones, 938 F.2d 838, 842 (8th Cir.

1991).° For each allegation of constitutional error, the

court will employ these legal standards in reference to

the state courts’ findings.

®As stated above, new §2254(e)(1) does not

change this.

40

Analysis

|. Waiver of Counsel

Petitioner contends that he was denied his

constitutional rights under the Sixth and Fourteenth

Amendments because the waiver of his right to counsel

the abuse-of-the-writ defense -pars this Court's

consideration of the claim after the remand from the

Court of Appeals.

A. Abuse of the Writ

The abuse-of-the-writ doctrine generally prohibits

a petitioner from raising claims in a subsequent habeas

petition that could have been, but were not, raised in

the first federal habeas proceeding. McCleskey v. Zant,

499 U.S. 467, 490 (1991). The general bar against

abusive claims also extends to successive claims which

raise grounds identical to those heared and decided on

the merits in a previous petition. Sawyer v. Whitley,

505 U.S. 333 (1992).

This court did determine that petitioner had not

validly waived his right to counsel and granted the writ

of habeas corpus on that basis in an Order dated May

16, 1995. However, under the procedural

circumstances in this case, this is not a successive

claim and the abuse-of-the-writ defense is not

applicable.

44

In the previous Order, this Court declined to

address eleven of the thirteen allegations of

constitutional error raised in the amended petition. The

Court of Appeals thus remanded the case, before

briefing or arguments on appeal, for resolution of the

remaining issues. Petitioner raised the waiver of

counsel issue again after remand, perhaps fearing that

the failure to do so would be taken as a default. He

also voluntarily dismissed with prejudice several other

claims, paring down to six the number of remaining

claims for relief.. This Court then set aside the previous

order and judgment under Fed.R.Civ. P. 60(b) so

all six issues would be decided in a single order, for

sake of clarity and judicial economy. Order dated April

23, 1996. Under no tenable theory is the claim barred

from this Court's review. See Murray v. Delo, 34 F.3d

1367, 1374 (8th Cir. 1994). This is a first habeas

corpus petition to which the doctrine of abuse of the writ

does not apply. Lonchar v. Thomas, No. 95-5015 (U.S.

Apr. 1, 1996).’

B. Merits

"It is unclear from earlier pieadings whether the

State asserts a procedural default defense to this

claim. The Court notes, however, that the claim is

not procedurally barred. The issue was presented to

the Missouri Supreme Court in the "Motion to. Reverse

Judgment and Sentence and to Remand for

Appointment of Counsel”, filed by appointed amicus

counsel after Dr. Parwatikar reported that Petitioner

had not intelligently and voluntarily waived his right to

counsel. The issue was raised again in the Rule

24.035 appeal, with reference to the relevant federal

case law. See Walton v. Caspari, 916 F.2d 1352 (8th

Cir. 1990).

42

The Sixth and Fourteenth Amendments of the

United States Constitution guarantee a criminal

defendant in a state proceeding the right to counsel.

Gideon _v. Wainwright, 372 U.S. 335, 342-44 (1963).

The accused person does have a corollary right to

waive counsel and proceed pro se, but only if the

waiver is knowing, intelligent and voluntary. Faretta v.

California, 422 U.S. 806 (1975). The constitution

"imposes the serious and weighty responsibility upon

the trial judge [to determine] whether there is an

intelligent and competent waiver by the accused.”

Johnson v. Zerbst, 304 U.S. 458, 465 (1938). in doing

so, the court must “indulge every reasonable

presumption against waiver" because the purpose of the

right to counsel is “to protect an accused from

conviction resulting from his own ignorance of his legal

and constitutional rights”. Id., at 464, 468 (1938) (citing

Aetna insurance Co. v. Kennedy, 301 U.S. 389, 393

(1937).

"The determination of whether there has been an

intelligent waiver of the right to counsel must depend, in

each case, upon the particular facts and circumstances

surrounding that case, including the background,

experience, and conduct of the accused.” Johnson, 304

U.S. at 464. “To discharge this duty properly in light of

the strong presumption against waiver of the

constitutional right to counsel, a judge must investigate

as long and as thoroughly as the circumstances of the

case before him demand." Von Moltke v. Gillies, 332

U.S. 708, 723-24 (1948).

The trial court must make a meaningful inquiry to

determine whether a particular defendant's waiver of

these rights is a “voluntary and intelligent choice among

the alternative courses of action". Schone v. Purkett,

43

:

:

g

:

5

|

:

defendant must be examined, the fact that an accused

person tells the trial court that "he is informed of his

right to counsel and desires to waive this right does not

automatically end the judge's responsibility ....A

judge can make certain that an accused's professed

waiver of counsel is understandingly and wisely made

only from a penetrating and comprehensive examination

of all the circumstances under which such a plea is

tendered." Von Moltke, 332 U.S. at 723-724. “[T]he

ultimate test for whether there has been a valid waiver

of the right to counsel is not the trial court's express

advice, but rather the defendant's understanding”.

United States v. Cash, 47 F.3d 1083, 1088 (11th Cir.

1995).

A finding that a criminal defendant is "competent

to proceed" does not resolve the issue whether his

waiver of counsel is knowing, intelligent and voluntary. °

These are two separate questions. Both must be

answered in the affirmative before there can be an

effective waiver of the constitutional right to counsel.

“Petitioner has dismissed the claim that he was

not competent to proceed, which this Court had

denied in the previous order.

Ge

Godinez v. Moran, 113 S.Ct. 2680 (1993). In Godinez,

the United States Supreme Court explained that "when

a defendant seeks to waive his right to counsel, a

determination that he is competent to stand trial is not

enough; the waiver must also be intelligent and

voluntary before it can be accepted". Id. at 2688. The

Godinez Court finally explained the distinction between

these two requirements, which has caused much

contusion in this and other cases. The “focus of the

competency inquiry is the defendant's mental capacity;

the question is whether he has the ability to understand ~

the proceedings. - The purpose of the ‘knowing and

voluntary’ inquiry, by contrast, is to determine whether

the defendant actual does understand the significance

and consequences of a particular decision and whether

the decision is uncoerced." Id. at 2687, n.12 (emphasis

in original) (citations omitted).

Thus, “a finding that a defendant is competent to

stand trial... . is not all that is necessary before he

may be permitted to plead guilty or waive his right to

counsel. In addition to determining that a defendant

who seeks to plead guilty or waive counsel is

competent, a trial court must satisfy itself that the

waiver of his constitutional rights is knowing and

voluntary.” Id. at 2687 citing Parke v. Raley, 113 S.Ct.

517, 523 (1992) (The test is whether the waiver

represents a voluntary and intelligent choice among the

alternative courses of action open to the defendant), -

and Faretta, 422 U.S. at 835 (accused must "knowingly

and intelligently" forego benefits of sight to counsel).

In this case, as in others throughout the circuits

before Godinez, the courts and the parties have

repeatedly confounded and often interchanged the

terms “competency to proceed” with "competency to

45

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eel viel

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competent waiver" requirement

determine whether there is an intelligent and competent

waiver by the accused”. id. at 2688.

The semantic chaos after Westbrook has

additional relevance in this habeas corpus proceeding

because a state court's determination of competency is

@ factual finding entitied to a presumption of correctness

under §2254(d). Thompson, 116 S.Ct. at 459 citing

Maggio v. Fulford, 462 U.S. 111, 117 (1983). However,

@ “waiver of the Sixth Amendment right to assistance of

ceuaieatitine tacts meeemsaeneh tone”

requires application of constitutional principles of facts."

Thompson, 116 S.Ct. at 459 citing Brewer v. Williams,

430 U.S. 387, 404 and n.4 (1977). Although subsidiary

factual findings must be presumed correct, the ultimate

question requires an assessment of the totality of

circumstances. See Miller v. Fenton, 474 U.S. 104

(1985). This is a matter for independent federal

determination. Cuyler, 446 U.S. at 342; Miller, 474 U.S.

at 112 (voluntariness of confession context).

The initial question here then, is whether the trial

court or the Missouri Supreme Court made the sort of

ulti

on the waiver of counsel. Sumner, 449 U.

State court's resolution of an issue does not always

examine whether one of the sittetons in §2254(d)

negates the presumption of correctness. Finally, this

47

Court will determine the legal conclusion supported by

the relevant facts.

The record in this case shows that the trial court

made no factual findings when it consented to

Petitioner's waiver of counsel. (Cir. Ct. Tr. at 42-90).°

Rather, the trial judge expressed the mistaken belief

that he was obliged to accept the waiver of counsel

of the offense, this court feels that the

availability of legal counse! is essential so

that he can rely upon it, at least if he

wants to, you see?

(Cir. Ct. Tr. at 45-46). See also Cir. Ct. Tr. at 62.

The trial court had just found that petitioner was

competent to proceed when defense counsel Fred

Duchardt and Mr. Wilkins announced that he wanted to

*The Court will refer to the transcript of the

arraignment, competency hearings, pleas of guilty and

sentencing before Judge McFarland as the "Circuit

Court Transcript” or "Cir. Ct. Tr."

48

waive counsel, plead guilty and seek the death penalty.

(Cir. Ct. Tr. at 42-45). The court told petitioner many

times that he had the right to counsel and the right to

waive counsel. Acknowledging that petitioner was

sixteen years old with only a ninth grade education and

no legal knowledge or experience, the court stated that

the circumstances ‘of the case cautioned against the

waiver of counsel. (Cir. Ct. Tr. at 43-44)."° The trial

judge urged Mr. Wilkins-to accept counsel and

instructed him to think about his decision for a few

days. The court ordered Mr. Duchardt to remain

available to answer any questions petitioner might have.

(Cir:-Ct. Tr. at 59, 67.)

The next hearing on the motion to waive counsel

was held one week later. The court again cautioned

petitioner about the dangers of proceeding pro sé, and

informed him about other constitutional rights, reciting

a list including the right to confrontation, compulsory

process, appeal and so forth. (Cir. Ct. Tr. at 69-79).

The court explained that counsel could help protect

thove rights and expressly told Mr. Wilkins that he faced

two possibilities for punishment upon conviction: the

death penalty or life in prison without parole. (Cir. Ct.

Tr. at 69-79). Petitioner continued to assert that he

wanted to waive counsel. (Cir. Ct. Tr. at 70-79). Mr.

Duchardt continued to asserts that he did not believe

Mr. Wilkins was “competent to make those decisions."

(Cir. Ct. Tr. at 41, 81). The court then provided

The prosecutor also argued that the

assistance of counsel may be necessary, and urged

to court to require defense counsel to stay available:

"We simply believe with the court that there may be

some matters where assistance or advice or counsel

may be necessary". (Cir. Ct. Tr. at 62).

49

petitioner with waiver of counsel forms and accepted

the waiver, but again advised petitioner to reconsider.

(Cir. Ct. Tr. at 83-88, 94-95).

Although the trial court strongly encouraged

petitioner to accept the services of counsel, the

circumstances of this case demanded more. The

Constitution required the trial court to consider the

“background and experience” of Mr. Wilkins, who at the

time was a juvenile with a long history of

institutionalization for mental disorders and suicide

attempts. Here, as in Von Moltke, the judge did not

make a “penetrating and comprehensive" examination

of all the circumstances or “investigate as long and

thoroughly" as the circumstances of this case

demanded to determine if Mr. Wilkins actually made a

knowing, intelligent and voluntary waiver. Von Moltke,

332 U.S. at 723-724.

The omission is significant in this case.

Petitioner was a sixteen year-old boy with less than a

ninth grade education when he waived his right to

counsel, entered the guilty plea and was sentenced to

death. He had lived in mental institutions since he was

~ ten. His background before being institutionalized

included severe beatings and abuse by his mother and

her live-in boyfriends. Child care frequently consisted

of being locked alone in a room for hours without toilet

facilities. (Cir. Ct. Tr. at 66, 357, 528-534, 358). The

mother regularly used illegal drugs. An uncie, with her

permission, gave petitioner marijuana and other drugs

since he was only six years old "as a joke". (Cir. Ct. Tr.

at 523-532).

At Tri-County Mental Health Center in 1979,

Psychologist Robert Urie, Ph.D. described petitioner,

50

eee eee aaa _aaa~a eee

then age ten, as "a severely depressed boy with

homicidal and suicidal ideation", "borderline thought

disorder” and “emotional neglect." (Exhibit 7). Robert

Walker, M.D., a psychiatrist, also reported then that he

was at "serious risk" of becoming "homicidal and

suicidal". (Exhibit 7).

The state court record included accounts from

Butterfield Youth Ranch from 1980-1983, where

petitioner was institutionalized from age eleven to

fourteen. Those records documented bizarre behavior,

depression, hallucinations and the mother's lack of

interest. (Exhibit 8}. In 1982, psychiatrist James

Chappel, M.D., reported that petitioner showed "bizarre

behaviors, especially when stressed" and possible

schizophrenia. (Exhioit 8). Dr. Chappel feared tnat with

stress, petitioner “would decompensaie". (Exhibit 8 at

42, 539-545, 793-794).

in 1983 at Crittenton Psychiatric Center, Michael

Harty, Ph.D., a psychologist, and Huseni Poonawala,

M.D., the treating psychiatrist, predicted that petitioner

would have a "psychotic breakdown" and become

“violent or self-destructive". (Exhibit 5). By age 16 and

at the time of this homicide, petitioner was living in a

public park with other troubled teenagers, taking drugs

and drinking excessively. (Cir. Ct. Tr. at 540-542).

Immediately before petitioner announced his

waiver, psychiatrist Dr. William Logan had testified at

the competency hearing that Mr. Wilkins had emotional

impairments that caused him to act against his own

best interests and “could interfere with his decision

making process at certain critical points." (Cir. Ct. Tr.

at 22). Dr. Logan had explained that petitioner was

very impulsive, had not learned "how to use his mind to

51

make rational common sense decisions", and that

“when it comes to making critical decisions, he's very

easily frustrated and prone to give out and just take the

quick, easy solution primarily based on how he feels

and not on what he thinks or what might be the wisest

course of action". (Cir. Ct. Tr. at 23-25). .

instead of further exploring the circumstances in

light of this background, the trial court's inquiry here

consisted almost entirely of leading questions, recited in

a manner directed more toward making a record than

meaningfully probing whether the waiver was a

“voluntary and intelligent choice among the alternative

courses of action.” Schone, 15 F.3d at 788-789. Most

of Mr. Wilkins' responses are simply "yes" or "no"

answers, as if on cross-examination. (Cir. Ct. Tr. at 75-

89)."’ The court's extensive use of leading questions on

the record and the lack of any reference to his mental

disorders provides no fair support for the conclusion

that the waiver was intelligent and voluntary. Mental

iliness is a factor the trial court must consider when

ruling on the validity of a waiver. E.g., Cooper v. Griffin,

455 F.2d 1142 (5th Cir. 1972).

“At the arraignment on October 17, 1985,

petitioner said only two words ("yes sir") and the

hearing was very brief. (Cir. Ct. Tr. at 3-5). At the

competency hearing on April 16, 1986, Mr. Wilkins

said nothing. Id. at 6-15. Petitioner then stated that

he wanted to waive counsel. Although the court

questioned him for several minutes, petitioner's

responses were very limited. In the Hearing on

Waiver of Counsel, on April 23, 1986, the court asked

only a series of generic standard leading questions.

petitioner, answered all questions with "yes", "no" or a

nod. Id. at 69-96. |

52

The Missouri Suprerne Court also erroneously

equated "competency to proceed” with the requirements

for a waiver of the constitutional right to counse/. In the

opinion on the mandatory statutory direct review of the

conviction and sentence of death under Mo. Rev. Stat.

§565.035, the court states that "any finding of

competency necessarily entails the ability to waive

certain rights beginning with the very first strains of

Miranda” and that "juveniles may validly waive the right

to counsel”. State v. Wilkins, 736 S.W.2d 409, 415 .

(Mo. 1987). This legal conclusion sets forth no finding

of fact entitied to a presumption of correctness.

Thompson, 116 S.Ct. at 459; Brewer, 430 U.S. at 404;

Cuyler, 446 U.S. at 342.

The Missouri Supreme Court did make some

factual findings on the statutory direct review which are

entitled to a presumption of correctness under §2254(d).

None of those findings, however, require the legal

conclusion that Mr. Wilkins’ waiver of counsel was

knowing, intelligent and voluntary. The court found that

the trial judge tried to dissuade petitioner from waiving

counsel and had “admonished” petitioner to “talk to

those whom he trusted and who could advise him about

his chosen course"” and stated that the judge had

urged petitioner to change his mind. Wilkins, 736

S.W.2d at 411-413. This finding, however, relates only

to the trial court's recommendation. It does not compel

the conclusion that Mr. Wilkins intelligently and

"The record also shows that petitioner did not

talk to anyone else about the decision to waive

counsel. When the trial judge asked petitioner if he

had consulted with anyone about that, Mr. Wilkins

replied "There's nobody else, nobody else who has a

hand in my decision, your honor." (Cir. Ct. Tr. at 75).

53

voluntarily waived his rights. "The ultimate test for

whether there has been a valid waiver of the right to

counsel is not the trial court's advice, but rather the

defendant's understanding.” Cash, 47 F.3d at 1088. A

detailed admonition by the trial court on the record does

not necessarily mean that the defendant acted

knowingiy, intelligently and voluntarily.

Moreover, the Missouri Supreme Court's

appointment of counsel for Mr. Wilkins on the direct

review and order for additional briefing and oral

argument is consistent only with a finding that Petitioner

validly did not intelligently and voluntarily waive his right

to counsel. As outlined above, that court had initially

appointed amicus counsel to brief issues and appear at

arguments. However, when petitioner asked to waive

amicus counsel on appeal, the court ordered Dr. Sam

Parwatikar to examine him regarding his "competence

to waive his right to counsel". (Exhibit 32)."° After Dr.

Parwatikar's evaluation, which included a review of all

prior records and an extensive personal interview, he

reported back to the court that Mr. Wilkins had mental —

Again, the language has caused confusion.

Dr. Parwatikar responded in the same terms.

However, he explained to this Court that he

interpreted the order as asking whether petitioner's

waiver of counsel was knowing, intelligent and

voluntary. He determined it was not. Dr. Parwatikar

testified that petitioner's decision to waive counsel

was not a rational choice because his reasoning

process was irrational. Dr. Parwatikar further noted

that petitioner's mental disorders made him less

capable that other sixteen year old boys in making

intelligent and voluntary decisions. (§2254 Hrg. Tr. 1-

30-96 at 19)..

54

disorders that "affect his rational reasoning and impair

his behavior". Dr. Parwatikar concluded that petitioner

was “not competent to waive his constitutional right to

counsel." (Exhibit 13 at 16).

After receiving Dr. Parwatikar's report, the

Missouri Supreme Court appointed counsel to represent

Mr. Wilkins on appeal and ordered supplemental briefs

and argument. (Order of Mo. Sup. Ct., Jan. 26, 1987).

The court's opinion on direct appeal refers to Mr.

Wilkins request to waive counsel, its order for the

evaluation from the Department of Mental health and

their subsequent appointment of counsel, but neglects

to set forth the findings of Dr. Parwatikar that prompted

the court to refuse petitioner's request and to appoint

counsel. Wilkins, 736 S.W.2d at 411. The court's

actions, however, constitute a findings in accord with

Dr. Parwatikar's report: that the waiver of counsel was

not intelligent and voluntary. See e.g., Parker v.

Dugger, 498 U.S. 308, 316 (1991).

On the collateral review under Mo.R.Crim.P.

24.035, the state postconviction court did not make any

findings binding on this Court. The postconviction

court listed several factual findings that support

petitioner's competency to proceed, but that issue is not

before this Court. The court's conclusion that the

waiver of counsel was valid was again based on the

erroneous legal view that a determination of

“The Court will refer to the Findings and

Conclusions by the trial court on the motion for

postconviction relief under Mo.R.Crim.P. 24.035 as

R.24.035 Order. The transcript from the evidentiary

hearing on that motion will be designated R.24.035

Tr.

55

competency necessarily includes a valid waiver of the

right to counsel. R.24.035 Order at 5-9. The only part

of the court's order that addresses the waiver of

counsel states:

The court concludes that the finding of

competency of movant to proceed

entailed the ability to waive certain rights

and to make decision necessary for the

disposition of the case including the

decision to enter plea of guilty and under

the circumstances of this case to waive

counsel and proceed pro se. The court

also concludes a review of all the

evidence shows that movant knowingly,

voluntarily, and intelligently, and

competently waived his right to counsel.

The court further concludes that movant

suffered no deprivation under the Sixth

and Fourteenth Amendments to the

United States Corstitution and Article |,

Section 18(a) of the Missouri Constitution.

Court further cor.cludes that no prejudice

resulted to movant because of his waiver

of counsel. The court concludes that

movant is not entitled to relief because of

his change of feeling regarding the death

penalty.

Court concludes movant was mentally

competent to proceed as his own counsel.

R.24.035 Order at 9-10. This ruling is a legai

determination not compelled by any findings of historical

fact, and thus is not entitled to a presumption of

56

correctness. See Elem, 64 F.3d at 1200; Jones, 938

F.2d at 842.

_ The state postconviction court made no reference

to extensive evidence regarding the background of

petitioner, a necessary consideration in determining

whether his waiver of counsel was knowing, intelligent

and voluntary. Von Moltke, 332 U.S. at 723-724;

petitioner before the crime, other mental health expe

examined him and testified in the state court that

was “severely disturbed”.

hearing that petitioner's lifetime without affection and

nurturance had caused a “profound developmen

arrest", severe mental disturbances and that he had

attempted suicide several times. (Exhibit 14 and Cir.

Ct. Tr. 467-472, 511). Dr. Logan affirmed at this

Court's hearing that petitioner was extremely disturbed

and immature at age sixteen. His opinion is that

petitioner did not voluntarily or intelligently waive his

right to counsel and that he was strongly affected by

“internal coercion”. (§2254 Hrg. Tr. at 21-23).

Dr. Logan testified at the state evidentiary

tal

Dr. Dorothy Lewis, a psychiatrist, testified in the

state court that Mr. Wilkins had a strong family history

of psychotic ilinesses, had hallucinations and was

paranoid. This was consistent with an earlier diagnosis

of “childhood psychosis”. (Cir. Ct. Tr. at 24-26, 32-75).

Dr. Lewis stated that petitioner's “paranoid orientation .

. . played a major role in his dismissing his attorney."

(Cir. Ct. Tr. at 28).

57

Dr. William O'Connor, a clinical psychologist,

agreed that petitioner was "probably psychotic". (Cir.

Ct. Tr. at 139-170). Dr. Jonathan Pincus, a neurologist,

confirmed an earlier 1982 diagnosis of schizoaffective

disorder. (Cir. Ct. Tr. at 319-327).

guilty plea. The state court's only reference to the

hearing was the conclusion that "the court further finds

the testimony of the doctors relied upon by movant to

be unpersuasive and can find no basis for disturbing the

court's prior findings of movant's competency." R.

24.035 Order at 9:'

After a careful examination of the record as a

whole, this Court concludes that the finding is not

entitled to a presumption of correctness because it does

not resolve the factual dispute and is not fairly

supported by the record. §2254(d). The trial court does

not explain which doctors it found to be "unpersuasive"

or why. The judge does not set out whether he

believed that any or all of the doctors were mistaken,

lying or whether he just believed their testimony was

irrelevant in light of his mistaken view of the law. The

court did not make an credibility determination and did

not refer to the substance of any expert's testimony.

The express wording of the order refers only

to competency, but the court made the finding under

"Point Ill" of the order, which purports to address the

waiver of counsel. See R. 24.035 Order at 5-10.

58

Even more important, the trial court failed to even

mention that Dr. Mandracchia, a witness for the state,

testified that petitioner did not voluntarily and

intelligently waive his right to counsel or plead guilty.

(Exhibit 33 and Cir. Ct. Tr. 891-904). Although the

court made findings that Dr. Mandracchia believed

petitioner was competent to stand trial, it did not refer to

his testimony about the waiver of counsel and guilty

plea. (R.24.035 Order at 12-13). The exclusion is

conspicuous because the trial court, at the state's.

request, had expressly ordered Dr. Mandracchia to

conduct an additional examination to determine whether

petitioner's waiver of counsel, guilty plea and waiver of

mitigation were made "knowingly, voluntarily and

intelligently”. (Exhibit 35).

After examining petitioner as directed, Dr.

Mandracchia reported:

1. In the opinion of this examiner, the

Movant's waiver of counsel was made

knowingly but not voluntarily or

intelligently.

2. In the opinion of the examiner, the

Movant's plea of guilty and waiver of trial

by jury was made knowingly but not

voluntarily or intelligently; therefore, the

Movant is not viewed as having been

competent to make such a decision.

3. In the opinion of the examiner, the

Movant's waiver of his right to offer

evidence in mitigation of punishment was

made knowingly but not voluntarily or

intelligently; therefore, the movant is

59

. See e.g.,

1188, 1191 (8th Cir. 1981).

getting the death penalty and did not explore or

consider any other options. (id. at 51). Dr.

Mandracchia explained that although some sixteen year

old boys might be able to voluntarily and intelligently

waive such rights, petitioner did not. id. at 73, 76-77.

The record indicates that the state courts gave

inadequate weight in this case to petitioner's young age

at the time of the waiver. Dr. Mandracchia’s findings

are credible and relevant to the law. See Von Moltke,

60

While thare is a presumption of correctness to

historical facts such as the court's finding that petitioner

mentioned by the court was proof of Petitioner's serious

psychiatric history as a child. (Cir. Ct. Tr. at 237).

Other findings are not fairly supported in the

record. Contrary to the Missouri Supreme Court's

61

description, Wilkins, 802 S.W.2d at 502, the hearing

court did not make any credibility determinations or

state that Dr. Mandracchia’s testimony was

“unpersuasive". The motion court only referred to the

“doctors relied on" by petitioner. (R. 24.035 Order at 9).

Dr. Mandracchia was the state's witness.

Even though the trial court made no factual

judge's conclusion could not be wrong:

in the protracted proceedings

hereinbefore discussed, Judge McFarland

perhaps more than any person was

favorably positioned to understand

defendant and evaluate the evidence. He

had ample opportunity to observe the

defendant and learn the innermost reason

for his decision to waive counsel. This

observation and oral examination of the

defendant could not be ignored and was

necessarily taken into account when

assessing the competency of a defendant

to waive counsel.

Wilkins, 802 S.W.2d at 501. The court's account of the

trial judge's "many hours of counseling and

conversations" is contradicted by the record and does

not resolve the waiver of counsel issue. The trial court

asked very few questions that could not be answered

with a "yes" or "no". Neither state court considered

petitioner's background or the unanimous opinion of all

mental health professionals that the waiver was not

62

intelligent and voliuntary."° Further, the Missouri

Supreme Court's resolution of the issue repeatedly

refers back to Judge McFarland's determination that

petitioner was competent to proceed. However, at the

time that the trial court made that decision, petitioner

had uttered only two words in the court's presence. "

The Missouri Supreme Court's most tenuous

Statement is that “though defendant did not renounce

his waiver of counsel, he manifested his cunning,

availing himself of the services of "standby" counsel -

when it met his purpose." id. at 502. Although the trial

court had insisted that Mr. Duchardt remain available as

“standby counsel", he did not provide any legal advice

or assistance to petitioner. (Cir. Ct. Tr. at 60-69, 81,

161). The designation was artificial. Mr. Duchardt

objected in the state court and testified in this Court that

he was no more than a reference book that remained

on the shelf. (§2254 Hrg. Tr. at 87).

“This Court has found but one passage in the

State court record where the trial court asked

petitioner to explain the reasons why he wanted to be

executed. (See Cir. Ct. Tr. at 296-97). Petitioner's

answer does not indicate an awareness of available

defenses that might have resulted in a sentence

where he would be eligible for parole at some time.

Rather, Mr. Wilkins' response is similar to his

Statements during interviews with Dr. Parwatikar and

Dr. Mandracchia where he gives contradictory and

inconsistent explanations for his decision.

""Q. (by the court): Are you Heath Wilkins?

A. (by petitioner): Yes, sir.

(Cir. Ct. Tr. at 3).

63

The ultimate question of waiver is an issue of

federal law. For these reasons, and based on the

record as whole, this Court concludes that petitioner did

not knowingly, voluntarily and intelligently waive his right

to counsel.

ll. Guilty Plea and Waiver of Mitigation

Analogous to the waiver of counsel claim,

Petitioner also asserts that his guilty plea and waiver of

mitigation evidence were not knowing, intelligent and

voluntary. The State argued that the claim is

procedurally barred and that the state court's finding is

entitied to a presumption of correctness.

A. Procedural Bar

Petitioner fairly presented this claim to the state

postconviction court and the Missouri Supreme Court

with factual support and extensive briefs citing to

Westbrook v. Arizona, 354 U.S. 150 and Von Molike,

332 U.S. 708, as outlined above, and Boykin

Alabama, 398 U.S. 238 (1969), Brady v. Unted Sates

397 U.S. 742 (1970) (voluntariness of guilty plea), as

well as Lockett v. Ohio, 438 U.S. 586 (1986) and

Eddings v. Oklahoma, 455 U.S. 104 (1982) (mitigating

evidence). There is no procedural bar to this Court's

review of the merits. Further, the state courts’

conclusion is not entitled to a presumption of

correctness under §2254(d). This is a mixed question

of federal law and fact. Cuyler v. Sullivan, 446 U.S. at

342.

B. Merits

The Unites States Supreme Court has repeatedly

pronounced that in order to satisfy the dictates of due

process, a plea of guilty must be a knowing, intelligent

and voluntary act. E.g. Brady v. United States, 397

U.S. at 748. As with a waiver of counsel, the resolution

whether the plea was intelligently made depends on the

particular facts and circumstances of each case. See

Johnson, 304 U.S. at 463. If petitioner's waiver of

counsel was not knowing and intelligent, then the guilty

plea entered without counsel also must be invalid.

Arsenault_v. Massachusetts, 393 U.S. 5 (1968).

However, the court will address this claim

independently.

Under Boykin v. Alabama, 395 U.S. at 243-44,

the trial court must undertake a factual inquiry to

determine if the plea is voluntary and made with an

understanding of the -nature of the charge and

consequences of the plea. The Boykin Court

admonished state trial courts that the prerequisites of a

valid waiver of constitutional rights must be "spread on

the recerd." A federal court will not presume from an

incomplete or silent record that there has been a valid

waiver of constitution rights:

Several federal constitutional rights are

involved in a waiver that takes place when

a plea of guilty is entered in a state

Criminal trial. First, is the privilege against

compulsory seif-incrimination guaranteed

by the Fifth-Amendment and applicable to

the States by reason of the Fourteenth.

Second, is the right to trial by jury. Third,

is the right to confront one's accusers.

We cannot assume a waiver of these

three important rights from a silent record.

65

Id. at 243 (footnote and citations omitted).

The test for determining the validity of a guilty

plea is “whether the plea represents a voluntary and

intelligent choice among the alternative courses of

action open to the defendant." North Carolina v. Alford,

400 U.S. 25, 31 (1970). The trial court must establish

on the record that the defendant understands all

elements of the charges, including the required mental

State, and the possible ranges of punishment.

Henderson v. Morgan, 426 U.S. 637 (1976); Nash v.

Israel, 707 F.2d 298 (7th Cir. 1983). [Blecause a guilty

plea is an admission of all the elements of a formal

criminal charge, it cannot be truly voluntary unless the

defendant possesses an understanding of the law in

relation to the facts." Boykin, 395 U.S. at 243, n.5.

A guilty plea can be involuntary not only because

the defendant doesn't understand the nature of the right

he is surrendering, Johnson v. Zerbst, 304 U.S. 458,

464-65, but also because he has an incomplete

understanding of the charge. Smith v. O'Grady, 312

U.S. 329, 334. "Evidence of guilt establishes a factual

basis for the plea, not that the defendant understand

the law in relation to the facts." Gregory v. Solem, 774

F.2d 309, 314 8th Cir. 1965) quoting Nash, 707 F.2d at

303, n.8.

The record does not show that petitioner knew or

understood the specific elements of the charges he

faced or all his “alternative courses of action". There

was no discussion of the lesser included offenses of

second degree murder or manslaughter. The trial court

never explained the different degrees of homicide under

Missouri law and the difference in punishment.

Mo. Rev. Stat. §565.020 (1984) provides that a

person commits the crimes of murder in the first degree

if he "knowingly causes the death of another person

$

,

z

:

degree murder, which carries a parolable sentence,

does not include "deliberation". §565.021; State v.

Jackson, 511 S.W.2d 771 (Mo. 1974). Under Missouri

law, deliberation means that the defendant acted after

The word “deliberation” or its equivalent was never

used when he entered his guilty plea. (Cir. Ct. Tr. at

104-167). The only words used in relation to mental

States were “premeditated” and "knowingly" -— terms

that describe the mental state for second degree

murder under Missouri law. (Cir. Ct. Tr. at 125). Yet

Mr. Wilkins entered a plea of guilty to first degree

murder.

Moreover, the trial court expressly told Mr.

Wilkins that there were only two potential punishment

options: the death penalty and life in prison without

parole. (Cir. Ct. Tr. at 77). The record does not

establish that petitioner knew, or was ever told, that at

a tral, an attorney could present a "diminished

responsibility” defense that might result in a conviction

67

on the lesser included offense of second degree murder

and receive a parolable sentence. “

The trial judge's constitutional duty to establish

on the record the defendant's understanding of a

charge with a guilty plea does not depend on whether

the charge is complex or simple. However, the trial

judge must be even more soiicitous in fulfilling this duty

when the charge is not readily understandable by a

layman." Nash, 707 F.2d at 303, n.6.

Respondent argues that petitioner must have

understood about the lesser included option of second

degree murder and the diminished responsibility

defense because in the hearing on the waiver of

counsel Mr. Duchardt told the court that he had

“attempted” to tell petitioner his options. This general

statement, however, does not satisfy the requirements

of Boykin or establish that petitioner understood the

elements or difference between first degree murder and

second degree murder and the different penalties. See

Nash, 707 F.2d at 303.

“The "diminished responsibility" defense

permits a defendant to introduce evidence of a mental

disease or defect to prove the absence of a particular

mental element of the crime. E.g., State v. Anderson,

515 S.W.2d 534, 537 (Mo. 1974); See also Mo. Rev.

Stat. §552.015.2. Unlike the defense of "not guilty by

reason of insanity", the defendant accepts criminal

responsibility for his conduct, but is convicted of a

lesser degree of the crime because the mental defect

prevented the defendant from forming the mental

element of the higher degree of the crime. Id.

Mr. Duchardt never explicitly said what defenses

they had discussed. He testified in this Court that he

never explained the diminished responsibility defense to

him. Mr. Duchardt was certain petitioner did not

understand all the possible defenses. (§2254 Hrg. Tr.

at 89-90, 93-94, 97, 105-106).'® The postconviction

court praised Mr. Duchardt's “talents and ability [and]

also his dedication to his clients in the administration of

justice." (R.24.035 Order at 11). Having heard Mr.

Duchardt's testimony in the federal hearing and

reviewed the record in its entirety, this Court concur's

with that court's assessment of his professional

integrity. This Court fines the testimony of Mr. Ducharat

to be clear and convinc'ng that petitioner's waiver of

counsel and plea of guilty were made without an

adequate understanding of the charges against him and

the available defenses.

Although the trial court asked petitioner whether

he understood the rights he was waiving, the judge did

not ask him to say what he thought these defenses

were. The petitioner's own conclusory statement that

he was making an intelligent and voluntary plea is

directly contradicted by the record. See Gonzales v.

Grammer, 848 F.2d 894, 900 (8th Cir. 1988). -

"Mr. Duchardt's testimony was apparently

overlooked by the state courts. When asked at the

postconviction hearing whether he viewed Mr. Wilkins’

decision to dismiss counsel, plead guilty and seek the

death penalty as a decision made after "an intelligent

weighing of the alternatives", Mr. Ducharct replied: "I

never have and | never will." (R.24.035 Hrg. Tr. at

642).

69

It was particularly important for petitioner to

understand the option of a second degree murder

conviction because there is much evidence to suggest

that, due to his mental disorders, he may not have been

capable of deliberation. Although Dr. Logan found that

petitioner would be competent to assist an attorney at

trial, he testified that petitioner could not deliberate.

(Cir. Ct. Tr. at 511-512). Mr. Duchardt, a seasoned

defense lawyer, described this case as a very

defensible one on this issue of mental state. Indeed, all

of petitioner's co-defendants entered pleas of guilty to

lesser offenses and received parole-eligible sentences.

Further, the trial court's only inquiry into

"voluntariness" during the guilty plea was a question

whether petitioner had received any promises or

threats. (Cir. Ct. Tr. at 104-165). But when petitioner

reported that a guard had assaulted him that day, the

court dismissed it without delving into the circumstances

or effect of the incident:

Court: Now then, this guilty plea petition consists of 6

pages. One of the things in here, even though you've

not signed it, it says question No. 18, "| do not have

any complaints against any law enforcement officials

concerning my treatment while in jail. | had sufficient

food, water, medical care, and bedding and | was not

mistreated by any inmate while in jail. There are no

exceptions to any of these statements except,” and you

put yes there. . ." | suffered abuse verbally and

physically, 10:40, May 9, 1986, before entering the

court."

Petitioner: That is correct.

Court: Do you wish to tell the court more about that?

70

have to come off to me that way. And he pushed me

in my face up against the | and told me that, you

know, he can do whatever he wants or something along

the lines of, you know, there's nothing | can do about it,

he can do what he wants. And when | told him

wasn't so he said, he goes, "You're nothing but a

assed murderer." And he made a statement, oh, yeah,

he said, "What are you going to do about it?” And

was up in my face when this, you know, he did,

nst the wall and made

Statement that | was a bad assed mu r. ]

was going to do about it and |

didn't say nothing. | just looked at him. And he was

right up in my face. And he said, "! thought so," And

then he left and we came in here.

a

Z

Q: All right. Is that the extent of your complaints

against your treatment, or about your treatment?

A. Verbally and physically, yeah.

Q: Do you have any other compiaints about your

treatment while in jail?

71

A: No.

Q: All right, now, I'll ask you this, as to this treatment

that you've complained about, did that have anything to

do with your decision to come in here today and waive

your right to trial by jury and tel! the court that you want

to plead guilty?

A: Not that I'm aware of.

Q: Okay. Did you want to sign this petition to enter

plea of guilty?

A: Yes, your Honor.

(Cir. Ct. Tr. at 118-120).

The assaulting officer remained in the courtroom

throughout the plea and there were no_ further

questions. Although the trial court did not explore this

further, Dr. Logan testified that the incident would have

intensified petitioner's decision to plead guilty by

confirming that the future was hopeless with potential

for further abuse. (§2254 Hrg. Tr. at 24).

The record does not establish that the guilty plea

was intelligent and voluntary, as required by Boykin,

395 U.S. at 243. The circuit court's record, made with

leading questions, does not show that petitioner entered

the plea with an understanding of the elements and

consequences of ali charges and “the alternative

courses of action" open to him. See Alford, 400 U.S. at

31. The inquiry did not comply with the court's duty to

"investigate as long and as thoroughly as the

circumstances of the case demand” in order to protect

72

k

Petitioner from making an involuntary and unintelligent

waiver. Von Moltke, 332 U.S. at 724. The petitioner

has established on the record as a whole that the guilty

plea was not valid. The conviction can not stand.

ili. Juvenile Proceedings

Petitioner next claims that the procedures by

which he was ordered to be tried as an adult violated

argues that the claim is procedurally barred and is not

an issue for federal habeas review, but merely a

challenge to state law procedures for certification of

juveniles.

A. Procedural Bar

The state relies on the Missouri Supreme Court's

holding that the claim was defaulted because petitioner

did not challenge the certification in the state circuit

court requesting dismissal of the information or seeking

remand to the juvenile court. Wilkins, 802 S.W.2d at

496-97. A habeas petitioner's failure to comply witha —

State procedural requirement may bar federal review of

the merits if the state bar is "independent and

adequate", unless the petitioner shows "cause and ;

prejudice” for the default or a fundamental miscarriage -

of justice. Wainwright v. Sykes, 433 U.S. 72 (1977). A

State procedural rule is not adequate to bar federal

relief if the petitioner was acting pro se at the time of

the default and did not make a knowing and intelligent

waiver of rights. See e.g., Cooper v. Griffin, 455 F.2d

1142 (5th Cir. 1972). The Missouri rule barring a

challenge to the certification procedures when a guilty

73

Pn

plea is entered in circuit court does not apply if the

guilty plea was not valid. See State v. Simpson, 836

S.W.2d 75 (Mo. App. 1992). Whether a state

socadaiel aie tesainnsintn Rallies

issue of federal law, to be decided by the tom wy Mote

Williams v. Lockhart, 873 F.2d 1129, 113 pene

1989). Wis reer on echoes Sa caotte of the claim

B. Merits

later, however, that other important records were

missing. In light of this history, counsel requested the

scope and nature of petitioner's problems. (Cir. Ct. Tr.

at 464-467).

The adequacy of notice and need for the mental

evaluation are issues which implicate due process

concerns. The portions of the juvenile file that were

available revealed a significant history of mental

problems which suggests the need for further

evaluation. Given the seriousness of the charges and

petitioner's history of mental illness, the notice to

counsel does not seem sufficient to give petitioner the

benefit of the adversarial process. See Lankford v.

Idaho, 114 S.Ct. 1723, 1733 (1991).

However, in order for petitioner to prevail on this

due process claim, he must prove that, under the

totality of circumstances, the errors were so prejudicial

they rendered the entire proceeding fundamentally

unfair. See e.g., Donnelly v. DeChristoforo, 416 U.S.

637 (1974). Petitioner has made no showing that the

outcome of the juvenile proceeding would have been

any different if counsel had been given additional time

to prepare or if a mental evaluation had been ordered.

There is no indication that the juvenile court would not

have still waived its jurisdiction. Without such proof of

prejudice, the claim must be denied.

IV. Conflict of Interest — Prosecutorial Misconduct

Petitioner next asserts that his right to due

process of law was violated because the prosecutor,

Larry Harmon, had previously represented him in a

juvenile case, failed to disclose that prior representation

to counsel or the court and used confidential information

in prosecuting the case. The state argues that the

issue is procedurally defaulted and without merit.

76

A. Procedural Bar

The Missouri Supreme Court denied this claim on

the basis of a procedural bar, stating that the issue was

not timely presented in petitioner's first motion for

postconviction relief. Wilkins, 802 S.W.2d at 504.

Petitioner did raise the issue in a second amended

motion filed outside ofthe time limits in Rule 24.035,

" “but the court refused to consider the merits, holding that

the limitation period was mandatory and could not be

extended. Id. citing White v. State, 779 S.W.2d 571,

572 (Mo. 1989).

A federal habeas court may consider the merits

of a petitioner's procedurally defaulted claims if the

petitioner establishes both cause for the prejudice from

his default. Wainwright v. Sykes, 433 U.S. at 87; Engle

v. Isaac, 456 U.S. 107, 126-130 (1982). To establish

Cause, petitioner must show that "some objective factor

external to the defense impeded counsel's efforts to

comply with eh State procedural rule." Murray _v.

Carrier, 477 U.S. 478, 488-89 (1986). Proof that the

factual basis for the claim was not reasonably available

to counsel or that the interference by state officials

made compliance impracticable are examples of such

factors. Amadeo v. Zant, 486 U.S. 214, 222 (1988);

Parkus v. Delo, 33 F.3d 933, 938 (8th Cir. 1994); Bliss

v. Lockhart, 891 F.2d 1335, 1341 (8th Cir. 1990).

Petitioner has established cause for his default

because the factual basis for his claim was not

available to counsel at the time that the first amended

postconviction motion was filed on August 30, 1988.

Counsel learned for the first time on April 19, 1989 that

Mr. Harman had represented petitioner in juvenile court

Proceedings. On that date, postconviction counsel

77

found an order from the Juvenile Court, dated 1979,

committing petitioner to the Department of Mental

Health for psychiatric treatment, which listed Mr.

Harman as his attorney. Apparently there is no other

record of Mr. Harman's representation because the

Juvenile Court file and the Clay County Public Defender

file had both been destroyed.

Mr. Harman did not disclose this conflict of

interest to the court or to counsel, and counsel could

not otherwise reasonably have know: of the

prosecutor's prior relationship with petitioner. The

record shows that in August, 1985, Mr. Duchardt had

asked the Western Missouri Mental Health Center for

copies of all records on petitioner, but was told by a

clerk on August 21, 1985 that none were available.

Postconviction counsel began requesting files from the

Mental Health Center shortly after being appointed in

1988, but no records were found until April 19, 1989,

when a records supervisor searched in the basement

files.

When postconviction counsel learned of Mr.

Harman's prior involvement with petitioner, he

immediately filed the second amended Rule 24.035

motion alleging that Mr. Harman's prosecution of his

former client was a conflict of interest that violated due

process. After the Missouri Supreme Court refused to

consider the merits of the claim on the Rule 24.035

appeal, the issue was presented to that court in a

Petition for Writ of Habeas Corpus filed under Missouri

Supreme Court Rule 91, with supporting proof. Under

these circumstances, factors external to the defense

prevented the discovery of the only existing document

showing Mr. Harman's prior representation. See

Amadeo, 486 U.S. at 222; Parkus, 33 F.3d at 938.

78

Petitioner did all he could to exhaust the claim in the

State court. Principals of comity and federalism are not

offended. There is cause to overcome the procedural

bar.

B. Merits

As a public defender in 1979, Mr. Harman

represented petitioner, then age ten, on a burglary

charge in the juvenile court. Petitioner's mental

condition was a key issue in those proceedings. A

number of confidential psychiatric reports were made

which included sensitive personal data about petitioner

and information about his attempt to poison his mother

a year earlier. The records included opinions by mental

health professionals that petitioner was severely

depressed and had suicidal and homicidal impulses.

The outcome of the 1979. matter was that Mr. Harman

Stipulated to petitioner's commitment to the Division of

Mental Health.

Six years later, as the lead prosecutor on this

case, Mr. Harman actively sought a conviction and the

death penalty for his former client. There is no question

that the prosecutor remembered the earlier

representation. On August 14, 1385, the day before the

juvenile certification hearing, Mr. Harman requested an

advisory opinion on the matter from the Missouri Bar

Advisory Committee.*’ The Committee's response,

dated August 29, 1985, stated:

‘The exact content of Mr. Harman's letter to

the Advisory Committee is not clear. The state has

not provided a copy of the document to this Court.

79

ii |

lt is the opinion of the Advisory

Committee that there would be no conflict

of interest for you to prosecute a criminal

case against an individual whom you

represented in an unrelated juvenile court

matter in 1979. This assumes that no

information was obtained at the time of

the earlier representation which would be

used against the defendant in the course

of this prosecution.

(Exhibit 23) (emphasis added). The state contends that

this answer constitutes a finding that there was no

conflict of interest and that the prosecutor violated no

ethical rule. This Court is not convinced. The

Committee's response is generic and does not refer to

any specific circumstances in this case. Under the facts

in the record as a whole, the assumption that the

matters were “unrelated” or that information obtained in

the earlier representation would not be used in the

prosecution of Mr. Wilkins is refuted. It is presumed

that an attorney received confidential information in the

course of representing a ciient. United States v.

Shepard, 675 F.2d 977 (8th Cir. *982).

The Missouri disciplinary rules, also adopted in

this federal district, restrict an attorney's employment

adverse to a former client.” Rule 1.9 is derived from

“Rule 1.9 provides:

Conflict of Interest: Former Client

A lawyer who has formerly represented a client in a

matter shall not thereafter:

(a) represent another person in the same or a

substantially related matter in which that person's

interests are materially adverse to the interests of the

80

counsel's duty to preserve the confidences of his client

in order to preserve the integrity of the adversary

System. As a prosecutor, however, Mr. Harman also

had additional ethical obligations. “The responsibility of

@ public prosecutor differs from that of the usual

advocate; his duty is to seek justice, not merely to

convict." Young v. United States, 481 U.S. 787, 802

(1987) quoting Ethical Consideration (EC) 7-13 of

Canon 7 of the American Bar Association Mode! Code

of Professional Responsibility (1982). See also Berger

v. United States, 295 U.S. 78 (1938) and EC 5-15 (if

there is a possible conflict of interest, lawyer "should

resolve all doubts against the propriety of the

representation"); EC 906 (lawyer has duty to avoid “not

only professional impropriety but aiso the appearance

of impropriety”).

Concerns for potential misconduct in this setting

are not merely speculative. In Young, 481 U.S. at 807,

the Supreme Court noted that “an arrangement

represents an actual conflict of interest if its potential for

misconduct is deemed intolerable. The determination

whether there is an actual conflict of interest is therefore

distinct from the determination whether that conflict

results in any actual misconduct.”

The question for this Court, however, is not

whether the prosecutor's actions violated the ethical

code. Habeas corpus relief is available only where

former client unless the former client consents after

consultation; or

(b) use information relating to the representation to

the disadvantage of the former client except as Rule

1.6 would permit with respect to a client or when the

information has become generally known.

81

there are errors of constitutional magnitude. Cupp v.

McNaughten, 414 U.S. 141, 146 (1973); Newlon v.

Armontrout, 885 F.2d 1328, 1336 (8th Cir. 1989).

Petitioner asserts that the prosecutor's failure to

disclose his prior representation to the trial court or to

counsel! violated the due process protections of the

United States Constitution.

it is well-settled that a fair trial in a fair tribunal is

a basic requirement of due process. In re Murchison,

349 U.S. 133, 136 (1955); Tumey v. Ohio, 273 U.S.

510, 523.(1927). There is a constitutional violation of

due process when an attorney represents a client and

then participates in the prosecution of that client in the

same matter or another matter with a substantial

relationship to the first. See United States v. Schell,

775 F.2d 559, 566 (4th Cir. 1985); United States v.

Wilson, 497 U.S. 602 (8th Cir. 1974); Smith v. Whatcott,

757 F.2d 1098 (10th Cir. 1985). "The right to due

process and a fair trial include the essential element

that there is no unfair advantage to the prosecution by

reason of a prior professional relationship between [the

prosecutor] and a criminal defendant concerning the

same or closely related matter." See State v. Boyd,

560 S.W.2d 296 (Mo. App. 1977).

The threshold question then is whether the

prosecution for the murder of Nancy Allen had a

substaniial relationship to the juvenile court matter in

1979. The applicable test is that described in Arkansas

v. Dean Foods Products Co., 605 F.2d 380 (8th Cir.

1979) overruled on other grounds in In re Multi-Piece

Rim Products Liability Litigation, 612 F.2d 377, 378

(1980):

82

aa |

;

;

The former client need show no more

than that the matters embraced within the

pending suit wherein his former attorney

appears on behalf of his adversary are

Substantially related to the matters or

cause of action (where) the attorney

previously represented him, the former

Client. The Court will assume that during

the course of the former representation

confidences were disclosed to the

attorney bearing on the subject matter of

the representation.

Dean Foods, 605 F.2d at 383.

Under the law of this Circuit, "the attorney-client

relationship raises an irrefutable presumption _ that

confidences were disclosed." id. at 384. If there was

@ substantial relationship between the two matters, and

if the prosecutor will be called on to use against his

former client any confidential knowledge gained through

their former association, then there is prejudice to the

accused. Gajewski v. United States, 321 F.2d 261, 267

(8th Cir. 1963). Whether there is a “substantial

relationship" involves a full consideration of the facts

and circumstances in each case. See Dean Foods, 606

F.2d at 384.

Virtually every issue in this case involves

questions of petitioner's mental disturbances. As

Outlined above, the juvenile certification, waiver of

counsel, guilty plea and waiver of mitigation all involved

concerns related to petitioner's mental condition. Mr.

Harman had confidential knowledge of petitioner's

psychological background through his former

representation which resulted in commitment to a

83

mental institution. The Court finds that information was

substantially related to the later prosecution. Mr.

Harman had the discretion to seek or waive the death

penalty, and that decision necessarily involved

subjective assessments of petitioner's state of mind and

mental health. in a matter of such grave importance,

the prosecutor had a duty to disclose his prior

representation so that appropriate actions could be

taken to preserve the integrity of the proceedings.

This Court has found only one case where a

prosecutor has sought the death penalty in a case

against a former client that he had personally

represented. State v. Stenger, 760 P.2d 357 (Wa.

1988), held that when the death penalty is sought,

knowledge about the defendant's background disclosed

in the earlier representation becomes "closely

interwoven” with the capital case:

This is because the death penalty is the

ultimate punishment and, before the

prosecuting attorney may ask imposition

of the death penalty, the prosecuting

attorney must have reason to Yelieve that

there are not sufficient mitigating

circumstances to merit leniency ... . In

short, privileged information obtained by

the prosecuting attorney when he was the

defendant's counsel in the previous case

could well work to the accused's

disadvantage in this case where the death

penalty was sought.

ld. at 360. The Stenger court disqualified the

prosecutor. This Court agrees with the reasoning of

Stenger. Here, as in Stenger, the capital murder case

84

ny

prosecuted by the defendant's former lawyer was

substantially related to the earlier case

M Mr. Harman also erred by seeking the death

penalty, at least in part, on the basis of his own

personal opinion that petitioner had no serious mental

disturbance. At the sentencing proceeding, Mr. Harman

stated:

The state has attempted to be fair also,

your honor, in thie sense that we also

listed what could be considered as

mitigating circumstances, just the

evidence touching on those.

Whether or not the defendant was under

a@ severe or substantial emotional

disturbance at the time of the crime. We

don't believe that that actually existed, but

we did go into that with Dr. Logan.

Capacity to appreciate the criminality of

his conduct or the ability to conform his

conduct to the requirements of the law.

And we don't think that is a mitigating

Circumstance that is present in this case.

But, we elicited the testimony so the court

would have the benefit of both sides.

(Cir. Ct. Tr. at 293) (emphasis added).

A prosecutor's misconduct violates due process

if the defendant was prejudiced by the prosecutor's

85

actions to the extent that the proceeding was

fundamentally unfair. Donnelly v. DeChristoforo, 416

U.S. 637 (1974). Dodd v. Nix, 48 F.3d 1071, 1075 (8th

Cir. 1995). The prosecutor's personal belief is not the

proper basis for a sentence of death. See Newilon, 885

F.2d at 1336. This Court recognizes that ‘the

touchstone of due process analysis in cases of alleged

prosecutorial misconduct is the fairness of the trial, not

the culpability of the prosecutor”. Smith v. Phillips, 455

U.S. 209, 218 (1982). | However, fairness was

compromised here.

Petitioner was prejudiced by Harman's failure tc

disclose his personal knowledge of petitioner's prior

commitment to the department of mental health and the

facts and circumstances underlying that disposition.

This was relevant to the court's duty to preserve the

adversarial proces and in accepting the guilty plea.

The prosecutor's conflict of interest presents a

very serious issue. It seems incredulous to imagine a

former defense attorney, privy at one time to the

thought of a juvenile defendant so disturbed that he is

committed to a mental institution, to then turn

prosecutor and accuser seeking the death penalty for

his former client without disclosing the relationship to

the court and to counsel. This is particularly disturbing

in this case because petitioner waived counsel, entered

@ guilty plea to a capital charge, waived mitigation and

was sentenced to death. The presence of a former

defense attorney and confidant at the opposing table

would certainly inhibit a defendant from trusting his

present counsel or taking counsel's assertions of

confidentiality very seriously.

86

r

:

"A prosecutor acts in a quasi-judicial capacity,

and he and those associated with him should represent

public justice and stand indifferent as between the

accused and any private interest. . . . An attorney

cannot be permitted to assist in the prosecution of a

case if, by reason of a professional relationship with the

accused, he has acquired a knowledge of facts .. .

which are closely interwoven withe [the issues in the

case]." People v. Polonowski, 629 N.E.2d 1162, 1165

(lll. App. 1994) quoting State v. Curry, 272 N.E.2d 669,

672 (Ill. App. 1971).

This is a structural defect which defies analysis

by "harmless error standards". See Young, 481 U.S. at

809. Beyond a reasonable doubt, the entire conduct of .

the criminal proceeding was obviously affected by the

conflict of interest caused by the prosecutor's prior

representation and his nondisclosure. See Arizona v.

Fulminante, 499 U.S. 279, 309 (1990); Chapman v.

California, 386 U.S. 18 (1967). On this habeas review,

the Court has cautiously considered whether the error

had a substantial and injurious effect on the outcome of

the case: petitioner's conviction and sentence of death.

See Brecht v. Abrahamson, 113 S.Ct. 1710, 1714-1714

(1993). Having considered all facts and circumstances,

including petitioner's juvenile history, background of

abuse, mental disorders and institutionalization, the

Prosecutor's access to confidential information and

failure to disclose the prior representation, petitioner's

refusal of counsel and guilty plea, the Court finds that

the error had a substantial and injurious effect on the

outcome. See O'Neal v. McAninch, 115 S.Ct. 992, 994

(1995). The writ of habeas corpus will issue on this

claim also.

V. Proportionality Review

87

Petitioner next alleges that the proportionality

It is clear that the Eighth Amendment does not

require a state appellate court to determine whether a

death sentence is proportional to that imposed in other

cases. Pulley v. Harris, 465 metagmeg However,

0 ee not altogether settle the

Statutes (1986) does require that every death sentence

; the

determine "whether the sentence of death is excessive

This Court is mindful that "it is not the province

of a federal habeas court to reexamine state-court

determinations on state-law questions”. Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991). However, the

concern here is more than a matter of state law. in

Hicks v. Oklahoma, 447 U.S. 343, 346 (1980), the

Supreme Court held that a state creates a liberty

interest when it provides a criminal defendant with a

“substantial and legitimate expectation" of certain

constitutional violation". Toney v. Gammon, 79 F.3d

88

_ )

§565.035. However, the record shows that the court

did not consider certain facts necessary for an adequate

review in this case.

The Missouri Supreme Court focused only on the

aggravating circumstances of the crime and the strength

of the evidence of guilt. The court did not appraise the

relevance of petitioner's young age in the review.

There is no mention that Mr. Wilkins had been

committed to the Department of Mental Health at age

ten, had been institutionalized for more than three years

and that psychiatric and treatment records documented

severe emotional disturbances. This evidence directly

Supported at least two statutory mitigating

circumstances that commanded careful and full

consideration. See Mo. Rev. Stat. §565.050. Further,

the court gave no regard to the sentences of the other

person involved in the homicide.”

Three justices dissented for these reasons, with

Justice Donnelly writing to detail the factual omissions

and law contrary to the court's conclusion:

First, we consider age. in four capital

cases involving youths of comparable

age, a life sentence was imposed. State

v. Greathouse, 627 S.W.2d 592 (Mo.

1982) (defendant age seventeen); State v.

Allen, 710 S.W.2d 912 (Mo. App. 1986)

(defendant age sixteen): State v. White,

694 S.W.2d 802 (Mo. App. 1985)

(defendant age seventeen); State v. Scott,

651 S.W.2d 199 (Mo. App. 1983)

defendant age sixteen). Only one

Missouri youth has been sentenced to die

who was seventeen years or younger as

of his crime. State v. Lashley, 667

S.W.2d 712 (Mo. banc) cert. denied, 469

U.S. 873 (1984).

“Marge Filipiak received a suspended

sentence and probation. Ray Thompson was

sentenced to 15 years on a reduced charge of

second degree murder. Patrick Stevens was

sentenced to life imprisonment on the reduced charge

of second murder and will be eligible for parole after

he has served 15 years. The importance of this

consideration has been stressed. See State v.

Schneider, 736 S.W.2d 392, 405-06 (Mo. 1987) (J.

Biackmar, dissenting).

90

Id. at 422. This Court agrees with the assessment of

Justice Donnelly, which is Supported in the record by

Clear and convincing evidence.

Although the United States Supreme Court does

not require a state to do a Proportionality comparison in

every case, it is well established that the state court

must provide a meaningful appellate review as an

essential factor in Protecting the arbitrary and Capricious

imposition of the death penalty. Parker v. Dugger, 498

U.S. 308 (1991); Clemmons v. Mississippi, 494 U.S.

738 (1990). The review by the Missouri Supreme

Court, however, was not meaningful and resulted in an

arbitrary deprivation that violated “petitioner's right to

liberty is a denial of due Process of law." Hicks, 447

U.S. at 346; Parker, 498 U.S. at 322. See also Vitek v.

Jones, 445 U.S. 480, 488-89 (1980); Morrissey v.

Brewer, 408 U.S. 471 (1972).

This conclusion does not create &@ new rule of

law under Teague v. Lane, 489 U.S. 288 (1989). The

rule of Hicks, holding that a state statute regarding

Criminal procedure may create a liberty interest

triggering due process, was issued in 1980. Petitioner's

91

conviction was not final until 1989. Stanford v.

Kentucky, 109 S.Ct. 2969 (1989). See Griffith v.

Kentucky, 479 U.S. 314 (1987). There is no

retroactivity bar under Teague.

Vi. Aggravating Circumstances

Petitioner's last remaining claim is that his death

sentence is cruel and unusual in violation of the Eighth

Amendment because the aggravating circumstance

"depravity of mind" is unconstitutionally vague. The

state does not assert a procedural bar, but defends the

issue on the merits.

The trial court sentenced petitioner to death after

finding that two aggravating circumstances existed: first,

that “the murder in the first degree was committed while

the defendant was engaged in the perpetration of the

felony of robbery" and second, that "the murder in the

first degree involved depravity of mind and that as a

result thereof it was outrageously or wantonly vile,

horrible, or inhuman." (Cir. Ct. Tr. at 300-01).

Petitioner contends that the words "depravity of

mind" are unconstitutionally vague in this case because

the trial court did not specifically find “torture” and did

not explain the basis of this finding. In support,

petitioner relies on Godfrey v. Georgia, 446 U.S. 420

(1980); Maynard v. Cartwright, 486 U.S. 356 (1988),

and Newion v. Armontrout, 885 F.2d 1328 (8th Cir.

1989), cert. denied, 497 U.S. 1038 (1990).

The difference between this case and Godfrey,

Maynard and Newlon, however, is that Mr. Wilkins was

sentenced by the judge, not a jury. In Walton v.

Arizona, 497 U.S. 639, 653 (1990), the Supreme Court

92

held that "trial judges are presumed to know the law

and to apply it in making their decisions". This claim is

denied.

Conclusion

For the reasons stated above, the Court hold that

the petition for writ of habeas corpus will be

conditionally granted. This conditional writ shall

become unconditional and permanent unless the State

of Missouri allows petitioner to withdraw his plea of

guilty and commences proceedings to afford petitioner

a trial within sixty days of the date of this Order.

(signature)

SCOTT O. WRIGHT.

Senior United States District Judge

May 15 _, 1996.

en ren

93

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MISSOURI

HEATH A. WILKINS, —

Petitioner,

JUDGMENT IN A CIVIL CASE

Vv.

MICHAEL BOWERSOX,

Respondent. Case Number 91-0861-CV-W-5

Jury Verdict. This action came before the Court

for a trial by jury. The issues have been tried and the

jury has rendered its verdict.

X___ Decision by the Court. This action came to

trial or hearing before the Court. The issues have

been tried or heard and a decision has been rendered.

IT iS ORDERED AND ADJUDGED that the

petition for writ of habeas corpus will be conditionally

granted. This conditional writ shall become

unconditional and permanent -unless the State of

Missouri allows petitioner to withdraw his plea of guilty

and commences proceedings to afford petitioner a trial

within sixty days of the date of this order.

May 15, 1996 R.F. Connor

Date Clerk

signature

(By) Deputy Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

HEATH A. WILKINS, )

Petitioner,

v. ie 91-0861-CV-W-5

PAUL K. DELO |

)

)

Respondent. )

)

ORDER

Before the Court are respondent's Motion to

Preclude Consideration of Evidence Adduced Before

This Court on Petition for Writ of Habeas Corpus, and

petitioner's Motion to Expand the Record.

Motion to Preciude Consideration of Evidence

The basis of respondent's motion is the

Antiterrorism and Effective Death Penalty Act of 1996,

which was signed into law on April 26, 1996, four

months after the evidentiary hearing in this case.

Respondent contends that the evidence presented at

the hearing should not be considered pursuant to §

2254, which states:

if ihe appellant has failed to develop the

factual basis of a claim in State court

proceedings, the court shall not hold an

evidentiary hearing on the claim unless

the appellant shows that --

(A) the claim relies on --

- (i) a new rule of

constitutional law made

retroactive to cases on

collateral review by the

Supreme Court, that was

previously unavailable; or

__ (ii) a factual predicate

that could not have been

previously discovered

through the use of due

diligence; and

(B) the facts underlying the claim

would be sufficient to establish by clear

and convincing evidence that but for the

constitutional error, no reasonable

factfinder would have found the applicant

guilty of the underlying offense.

28 U.S.C... sec. 2254 (e) (2) (as amended April 24,

1996).

Respondent argues that this provision applies

retroactively to this case because the statute implicates

only a new procedural rule, citing Landgraf_ v. USI Film

Products, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994).

However, that case does not support respondent's

position. Landgraf, which involved the retroactivity of

compensatory and punitive damage provisions of the

Civil Rights Act of 1991, held that there is a

“presumption against retroactive legislation [that] is

deeply rooted in our jurisprudence, and embodies a

legal doctrine centuries older than our Republic.” 114

96

: S.Ct. at 1497. The Court adopted the following analysis

: to determine whether a statute is to be applied

retroactively:

When a case implicates a federal statute

enacted- after the events in suit, the

court's first task is to determine whether

Congress has expressly prescribed the

Statute's proper reach. If Congress has

done so, of course, there is no need to

resort to judicial default rules. When,

however, the statute contains no such

express command, the court must

determine whether the new statute would

have retroactive effect, i.e., whether it

would impair rights a party possessed

when he acted, increase a party's liability

for past conduct, or impose new duties

with respect to transactions already Be

completed. If the statute would operate

retroactively, our traditional presumption

teaches that it does not govern absent

clear congressional intent favoring such a

result. {

114 S.Ct. at 1505. The intent of Congress is therefore

the starting point for this Court's resolution of the issue.

It is apparent that Congress did not intend for §

2254 (e) to apply retroactively to pending cases.

Although some provisions of the Antiterrorism and

Effective Death Penalty Act of 1996 do set forth dates

or events upon which they become effective, Congress

did not specify an effective date for § 2254 (e). Title |

of the Act, designated "Habeas Corpus Reform,"

contains two sets of revisions to the statutes governing

97

habeas corpus cases. Those in sections 101 to 106

modify the statutory provisions which apply to all cases

brought under the statute, including § 2254 (e). The

second set of provisions, section 107 of Subtitle A,

designated “Chapter 154--Special Habeas Cerpus

Procedures in Capital Cases,” applies only to capital

the

disposition of habeas corpus actions brought by

prisoners under sentence of death, and applies only if

a state establishes criteria for the appointment and

compensation of competent counsel in state

postconviction proceedings.

The statute provides that "Chapter 154 of title 28,

United States Code (as amended by subsection (a))

shall apply to cases pending on or after the date of

enactment of this Act," but there is no such language

regarding §§ 101-106. Thus, it appears that Congress

contemplated the issue of retroactivity, but limited

retroactive application only to the expedited death

penalty provisions.

Respondent's argument that the amendments

affect only a "procedural rule" does not resolve the

question of retroactivity. in Landgraf, the Court

provided more concrete criteria for determining whether

legislation should apply retroactively:

Of course, the mere fact thet a new ~ule

is procedural does not miean that it

applies to every pending case. A new

rule concerning the filing of complaints

would not govern an action in which the

complaint had already been properly filed

under the old regime, and the

promulgation of a new rule of evidence

would not require an appellate remand for

a new trial. Our orders approving

amendments to federal procedural rules

reflect the common-sense notion that the

applicability of such provisions ordinarily

edu

. « » We do not restrict the presumption

against statutory retroactivity to cases

involving "vested rights.” . . . Nor do we

suggest that concerns about retroactivity

have no application to procedural rules.

114 S. Ct. at 1499, n. 29. A statute would upset valid

reliance interests if it "imposf[ed] new burdens on a

person after the fact,” 114 S. Ct. at 1500. The relevant

question is whether the statute would “take away or

impair vested rights, or create a new obligation, impose

a new duty, or attach a new disability?” 114 S. Ct. at

1499. Under respondent's argument, the statute would

increase petitioner's burden of proof and add new

obligations on habeas petitioners during the state

postconviction process. Given the procedural posture

of this case, this Court will not interpret the statute to

limit its consideration of the evidence presented at the

hearing.

Even if the new statute did apply retroactively,

the restrictions on federal evidentiary hearings in § 2254

(e) (2) are triggered only "[i]f the applicant has failed to

develop the factual basis of a claim in State court

proceedings. . . " In this case, petitioner did not fail to

do so. The evidence was developed in state court.

However, the Missouri Courts made no findings on

several issues, and other findings are not supported by

- the record as a whole.

28 U.S.C. § 2241 leaves intact the power and

duty of federal courts to issue writs of habeas corpus.

Indeed, “[a] ‘serious constitutional question’ .would arise

if a federal statute were construed to deny any judicial

forum for a colorable constitutional claim.” Webster v.

Doe, 486 U.S. 592, 603 (1988), citing Bowen v.

Michigan Academy of Family Physicians, 476 U.S. 667,

681, n. 12 (1986).

Petitioner has advanced meritorious claims,

supported by substantial evidence presented in the

state court, that his conviction and sentence were

obtained in violation of the Constitution. This Court

does not interpret any of the newly enacted provisions

pertaining to habeas corpus as infringing on this Court's

power and duty to adjudicate constitutional claims.

Wright v. West, 112 S.Ct. 2482 (192). Where the state

court fails to make findings of fact which adequately

resolve the constitutional claims that are properly before

it, the federal court's duty to adjudicate the claim

includes the power to hear evidence. Townsend v.

Sain, 372 U.S. 293, 312 (1963). Even under

Townsend, a petitioner could forfeit the right to an

evidentiary hearing in federal court if his failure to

adequately develop material facts was the result of

"inexcusable neglect." Id. at 317, citing Faye v. Noia,

372 U.S. 391, 438 (1963). The Court more recently

articulated a less forgiving standard for prisoners

seeking evidentiary hearings in federal court, requiring

a habeas petitioner seeking to present evidence which

he had failed to present to the state court to show

“cause and prejudice” for his failure. Keeney v.

Tamayo-Reyes, 504 U.S. 1 (1992).

100

The new statute appears consistent with the

direction the Court has taken--to conserve federal

judicial resources, and require prisoners to fully develop

the factual basis for their constitutional claims in the

State court. However, just as Keeney v. Tamayo-Reyes

modified Townsend, replacing the "deliberate by-pass"

Standard with the "cause and prejudice” test of

Wainwright v. Sykes, 433 U.S. 72 (1977), the statute

restricting evidentiary hearings Clearly is directed at

heightening the standard for prisoners who, for

whatever reason, by-pass the opportunity to develop

facts in the state court. Because the statute limits its

application to applicants who "fail to adequately develop

the factual basis of a claim in state court proceedings,"

the principles of Townsend remain intact if the petitioner

presented the factual basis of his claims in the state

court.

Respondent's motion to preclude the

consideration of evidence is denied.

Motion to Expand the Record

Petitioner has moved to expand the record and

Submitted Exhibits T-KK, inclusive, which have been

referred to throughout these proceedings and in the

State courts. This Court would abuse its discretion if it

refused to consider briefs and pleadings filed in the

State court, especially in light of respondent's numerous

Claims of procedural default. See Dobbs v. Zant, 506

U.S. 835 (1993) (per curiam). Petitioner's motion to

expand the record with Exhibits T-KK, inclusive, is

granted. |

Accordingly, it is hereby

101

ORDERED that respondent's Motion to Preclude

Evidence (Doc. #94) is denied. It is further

ORDERED that petitioner's motion to expand the

record (doc. #95) is granted.

(signature)

Scott O. Wright

United State District Court

Judge

Dated: May 15, 1996.

102

UNITED STATES COURT OF APPEALS

No. 96-2441WMKC

Heath Allen Wilkins, ’

Appellee, P Order Denying Petition

vs ° for Rehearing and

P Suggestion. for Re-

Michael Bowersox, s hearing En Banc

Appellant. P

The suggestion for rehearing en banc is denied.

The petition for rehearing by the panel is also denied.

July 13, 1998

Order Entered at the Direction of the Court:

(signature - Michael E. Gans)

Clerk, U.S. Court of Appeals, Eighth Circuit

103

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

HEATH ALLEN WILKINS,

Petitioner,

)

)

)

vs. )No. 91-0861-CV-W-5

)

MICHAEL BOWERSOX )

)

)

Respondent.

ORDER

Before this Court is Petitioner Heath A. Wilkins’

Motion to Set Aside Order Dated May 16, 1995, and

Revised Motion to Dismiss Certain Claims in the

Amended Petition. For the reasons set forth below,

these motions will be granted.

|. Background

On May 8, 1992, Petitioner filed his First

Amended Petition for Writ of Habeas Corpus, alleging

thirteen claims for relief. After additional briefing by

both parties, as ordered by this Court, Petitioner filed a

Motion for Evidentiary Hearing, which the State

opposed.’ On May 16, 1995, this Court entered an

; The original named respondent in this

action was Paul Delo, who was Superintendent of the

Potosi Correctional Center when the petition was

filed. Since then, Michael Bowersox has replaced Mr.

104

Order conditionally granting the Writ of Habeas Corpus

on one of Petitioner's claims on the basis of the record,

without an evidentiary hearing. The Court also

considered and denied one other claim, but the eleven

remaining claims were not addressed. Judgement was

entered on May 18, 1995. The State filed Motions to

Alter or Amend the Judgment under Fed.R.Civ.P. 59(e)

and to Stay the Order and Judgment, which this Court

denied on June 16, 1995. After timely filing a notice of

appeal, the State requested the Court of Appeals for the

Eighth Circuit to remand the case to this Court for

resolution of all remaining claims. The motion was

granted on October 3, 1995.

After remand, Petitioner renewed his previous

request for an evidentiary hearing. Over the State's

objections, testimony was heard on January 5 and 30,

1996. Petitioner then filed his Motion to Set Aside the

Order dated May 16, 1995, pursuant to Fed. R. Civ. P.

60(b). Post-Hearing Briefs were filed by both parties,

and Petitioner moved to dismiss certain claims in the

amended petition, with prejudice, paring back the

number of claims from thirteen to five.

ll. 60(b) Motion

_ Fed.R.Civ.P. 60(b) serves to relieve a party from

@ final judgment or order on one of several Specified

grounds. The rule provides in pertinent part:

Delo as Superintendent and thus has been

Substituted as the named respondent. For purposes

of simplicity, the Court will refer to the respondent as

"the State.”

105

482 (8th Cir. 1988).

On motion and upon such terms as are

just, the court may relieve a party or a

party's legal representative from a final

judgment, order, or proceeding for the

following reasons: (1) mistake,

inadvertence, surprise, or excusable

neglect; (2) newly discovered evidence

which by due diligence could not have

been discovered in time to move for a

new trial under Rule 59(b); (3) fraud

(whether heretofore denominated intrinsic

or extrinsic), misrepresentation, or other

conduct of an adverse party; (4) the

judgment is void; (5) the judgment has

been satisfied, released or discharged, or

a prior judgment upon which it is based

has been reversed or otherwise vacated,

or it is no longer equitable that the —

judgment should have _ prospective

application; or (6) any other reason

justifying relief from the operation of the

judgment. The motion shall be made

within a reasonable time, and for reasons

(1), (2), and (3) not more than one year

after the judgment, order, or proceeding

was entered or taken.

What constitutes a reasonable time for filing a

motion under Rule 60(b) depends on the particular facts

of each case. Harris v. Union Electric Co., 846 F.2d

In Harris, the court of appeals

found that the district court did not abuse its discretion

in entertaining a Rule 60(b) (5)-(6) motion made after

exhaustion of the appeals process and almost twenty-

three months after judgment was entered. Id. in this

case, Petitioner's motion was filed on February 8, 1996,

106

less than four months after the remand order and nine

months after this Court's original judgment and order.

The appellate process has been suspended with the

remand. Under the circumstances of this case, which

include an order for remand from the court of appeals,

evidentiary hearing and additional briefing, the motion

was made within a reasonable time.

Rule 60(b)(6), the provision upon which petitioner

relies, affords relief in “exceptional circumstances"

where the moving party cannot seek redress “through

the usual channels". United States v. Young, 806 F.2d

805, 806 (8th Cir. 1986). The district court has wide

discretion in deciding whether or not to grant a motion

under Fed.R.Civ.P. 60(b), therefore requiring clear

abuse of discretion for reversal. Atkinson v. Prudential

Property Company, Inc., 43 F.3d 367, 371 (8th Cir.

1994); Tungseth v. M of Insurance Co., 43

F.3d 406, 409 (8th Cir. 1994). The rule is fully

applicable to habeas corpus actions under 28 U.S.C. §

2254. Browder v. Department of Corrections, 434 U.S.

257 (1978). 3

The Court reads these standards for reliet from

judgment to require consideration of how justice can

best be served. The Court has weighed a variety of

factors, including the value of finality, the probability that

an error affected the outcome of the earlier order, the

probability that a revised order could better settle the

matter, and the costs to the parties. See Metlyn Reality

Corp. v. Esmark, Inc., 763 F.2d 826, 831 (7th Cir.

1985). Considering the remand and the fact that this

Court had not ruled on all the claims in the petition for

writ of habeas corpus, finality has not been

compromised. No additional cost to the parties is

involved. Petitioner does not attempt to use the motion

107

as a device merely to avoid the consequences of an

adverse judgment or in the absence of aii appeal. He

prevailed on one claim and seeks to voluntarily dismiss

with prejudice the only other claim addressed by this

Court in the May 16, 1995 Order.

Further, the State’s argument that the motion is

the equivalent of a successive habeas petition is

untenable in this case. No additional claim has been

presented. The parties had not submitted briefs and

the Court of Appeals had not-reviewed the Order of

May 16, 1995 before the State moved for remand. See

Murray v. Delo, 34 F.3d 1367, 1374 (8th Cir. 1994).

The authority cited by the State, Guinan v. Delo, 5 F.3d

313 (8th Cir. 1993), Bolder v. Armontrout, 983 F.2d 98

(8th Cir. 1992) and Blair v. Armontrout, 976 F.2d 1130

(8th Cir. 1993), is neither dispositive nor relevant here.

Those cases all involved habeas corpus litigants whose

petitions had been fully reviewed and denied on appeal

before new additional claims were raised in this Court.

This is a first habeas corpus petition to which the

doctrine of abuse of the writ does not apply. Lonchar

v. Thomas, No. 95-5015 (U.S. Apr. 1, 1996).

In the interest of judicial economy, Petitioner's

motion to dismiss certain claims with prejudice will be

granted. There must be a clear understanding,

however, that those claims are forever barred.

McCleskey v. Zant, 499 U.S. 467 (1991). The Court

intends to decide all remaining claims in the Amended

Petition in a single revised order. One of the claims this

Court had not resolved in the Order of May 16, 1995 is

Petitioner's assertion that his guilty plea was not

knowing, intelligent and voluntary. This involves

questions of fact and law substantially related to the

claim regarding the waiver of counsel which was

108

decided in the previous order. Clarity and judicial

economy would dictate that these issues be addressed

together in a single order. The testimony presented at

the evidentiary hearing after remand has been helpful

in that regard. It is certain that an appeal will follow this

Court's decision, regardiess of the outcome. Appellate

review of two separate judgments and a claim that has

since been dismissed would be an exercise in futility

and confusion. The wiser course of action would be to

set aside the previous judgment and order.*

Accordingly, it is hereby

ORDERED that Petitioner's Motion to Set Aside

Order (doc. #81) cated May 16, 1995 is granted. The

Judgment dated May 18, 1995 is therefore vacated. It

is further

ORDERED that Petitioner's Revised Motion to

Dismiss Certain Claims in the Amended Petition (doc.

#89) is granted.

(signature)

SCOTT 0. WRIGHT

Senior United States Judge

April 23, 1996

’ It is not necessary to determine whether

the Order of May 16, 1995, which did not dispose of

all claims, and the Judgment entered May 18, 1995,

constituted a final appealable judgment. Rule 60(b)

by its terms operates to set aside final iudgments or

orders.

109

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 95-2724‘4/MKC

Heath Allen Wilkins,

Appellee, * Appeal from the United

* States District Court for

v. * the Western District of

* Missouri

Paul Delo, :

Appellant ‘

_ JUDGMENT

The appellant's motion to remand is granted.

This appeal is remanded to the district court for

resolution of all matters contained in the first amended

petition for writ of habeas corpus.

-Mandate to issue forthwith.

October 3, 1995

Ovder Entered at the Direction of the Court:

(signature - Michael E. Gans)

Clerk, U.S. Court of Appeals, Eighth Circuit

110

IN THE UNITED STATES DISTRICT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

HEATH A. WILKINS,

vs. No. 91-0861-CV-W-5

PAUL DELO,

Before the Court are respondent's motions to

alter or amend judgment and to stay order and

judgment. Respondent moves the Court to alter or

amend this Court's May 16, 1995 Order conditionally

granting petitioner relief and to stay enforcement of the

May 16, 1995 Order pending resolution of respondent's

motion to alter or amend judgment.

Respondent's motion to alter or amend judgment

will be denied. Respondent's motion to stay order and

judgment is therefore moot and will be denied as such.

Accordingly, it is hereby

ORDERED that respondent's motion to alter or

amend judgment (document 47) is denied. It is further

ORDERED that respondent's motion to stay

order and judgment (document 48) is denied.

111

(signature)

SCOTT O. WRIGHT

Senior United States District Judge

June 16th, 1995

112

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF MISSOURI!

WESTERN DIVISION

HEATH A. WILKINS,

vs. No. 91-0861-CV-W-5

PAUL K. DELO,

Before the Court is Heath A. Wilkins’ First

Amended Petition for Writ of Habeas Corpus, the

State's’ response, petitioner's traverse, and

supplemental briefs on the issue of petitioner's

competency. For the reasons set forth below, Mr.

Wilkins’ petition will be granted.

|. Background

Petitioner pled guilty to first degree murder and

was sentenced to death in the Circuit Court of Clay

County, Missouri. The Supreme Court of Missouri

affirmed on direct review. The Supreme Court of the

United States granted certiorari on a limited issue and

affirmed. Petitioner's state post-conviction motion was

1 The named respondent in this action is Paul

Delo, the Superintendent of the Potosi Correctional

Center. For purposes of simplicity, the Court will refer

to the respondent as “the State."

113

denied by the sentencing court, the Supreme Court of

Missouri affirmed the denial, and the Supreme Court of

the United States denied petitioner's writ of certiorari.

Petitioner then filed the habeas corpus action currently

before the Court.

In July of 1985, petitioner and three companions,

Patrick Stevens, Ray Thompson and Marjorie Filipiak,

devised a plan to rob Linda's Liquors, a small

convenience store in Avondale, Missouri. Pursuant to

the plan, on July 27, 1985, petitioner and Stevens

entered the store and ordered a sandwich from the

store clerk, Nancy Allen. Stevens then seized Allen and

petitioner stabbed her repeatedly, inflicting fatal wounds.

Petitioner and Stevens gathered cash and merchandise

and left the store. The two later joined Thompson and

Filipiak to split up the money. On August 10, 1985,

petitioner, Stevens, Thompson and Filipiak were

arrested for the murder of Nancy Alien.

On August 15, 1985, petitioner, then 16 years

old, was certified by the juvenile court to stand trial as

an adult. On October 17, 1985, petitioner appeared

with appointed counsel, Fred Duchardt, for arraignment

in the Circuit Court of Clay County, Missouri before the

Honorable Glennon E. McFarland. (Cir. Ct. Tr. at 3).?

Petitioner was charged with murder in the first degree,

unlawful use of a weapon, and armed criminal action.

(Cir. Ct. Tr. at 4-5). Petitioner, through counsel, entered

a dual plea of not guilty by reason of mental disease or

defect excluding responsibility and not guilty. (Cir. Ct.

* The Court will refer to the transcript of the

arraignment, competency hearing, pleas of guilty and

sentencing before Judge McFarland as the "Circuit

Court Transcript,” or “Cir. Ct. Tr."

114

Tr. at 4). Mr. Duchardt informed the court that he

questioned whether petitioner was competent to

proceed and moved for a mental examination of

petitioner. (Cir. Ct. Tr. at 4). The court granted t

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