Martsay Bolder, Appellee/cross-Appellant v. Bill Armontrout, Appellant/cross-Appellee

921 F.2d 1359, 1990 U.S. App. LEXIS 21485, 1990 WL 198925
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 12, 1990
Docket89-2323, 89-2324
StatusPublished
Cited by38 cases

This text of 921 F.2d 1359 (Martsay Bolder, Appellee/cross-Appellant v. Bill Armontrout, Appellant/cross-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Martsay Bolder, Appellee/cross-Appellant v. Bill Armontrout, Appellant/cross-Appellee, 921 F.2d 1359, 1990 U.S. App. LEXIS 21485, 1990 WL 198925 (8th Cir. 1990).

Opinions

BEAM, Circuit Judge.

The district court found that Martsay Bolder’s trial counsel was constitutionally ineffective during the sentencing phase of his capital murder trial in Missouri state court and granted his petition for writ of habeas corpus. This vacated his death sentence. Armontrout appeals, asserting that most of Bolder’s federal claims are procedurally barred and that Bolder’s underlying ineffectiveness claim is without merit. Bolder cross-appeals the district court’s adverse holdings on a multitude of other issues. We agree that several of Bolder’s claims are procedurally barred and that his cross-appeal is without merit and reverse.

I. BACKGROUND

Bolder was indicted for and convicted of the murder of Theron King, a fellow inmate in the Missouri State Penitentiary. Bolder’s trial counsel, Julian Ossman, in accordance with Bolder's instructions, did not contact members of Bolder’s family in search of mitigating sentencing evidence and did not investigate to determine whether any other individuals could have provided mitigating background information. Ossman presented no mitigating evidence during the penalty phase of the bifurcated trial because he believed that none existed. Instead, he relied on his argument to convince the jury that the death penalty was not appropriate. The jury disagreed with Ossman and sentenced Bolder to death.

The Missouri Supreme Court affirmed the judgment and sentence on direct appeal. State v. Bolder, 635 S.W.2d 673 (Mo.1982) (en banc), cert. denied, 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983) (Bolder I). Bolder twice sought to have his death sentence vacated in post-conviction actions in state courts under Missouri Supreme Court Rule 27.26.1 The first petition was denied following an evidentiary hearing, and the denial was affirmed by the Missouri Court of Appeals. Bolder v. State, 712 S.W.2d 692 (Mo.Ct.App.1986) (Bolder II). Bolder’s second petition was denied as a successive petition without an evidentiary hearing. This denial was affirmed by the Missouri Supreme Court. Bolder v. State, 769 S.W.2d 84 (Mo.1989) (en banc) (Bolder III).

In his first 27.26 petition, Bolder asserted that his right to effective assistance of counsel under the sixth and fourteenth amendments to the United States Constitution had been violated. In addition to his allegation that Ossman failed to investigate for mitigating evidence, Bolder claimed that Ossman failed to interview four potential inmate witnesses, to call them at trial, and to present any mitigating evidence during the sentencing phase of his trial, including evidence of his borderline intelligence and his tender age at the time of the murder.

As indicated, the Missouri circuit court held an evidentiary hearing. Bolder testified and called four other witnesses — his sister and three individuals who were inmates at the Missouri State Penitentiary at the time of the murder. Following the hearing, the court found that Bolder had instructed Ossman not to contact Bolder’s family and had not suggested any witnesses, character or otherwise, to Ossman. The court found that Ossman interviewed the four inmates and, after consulting with Bolder, decided not to call them as witnesses. The court also found, based on the report of a psychiatrist, that Bolder was not suffering from a mental disease or defect and was able to conform his actions to the law. Thus, the court concluded that Bolder’s counsel provided constitutionally [1361]*1361adequate assistance and denied post-conviction relief.

The Missouri Court of Appeals affirmed. Bolder II, 712 S.W.2d 692. The appellate court held that Ossman made a reasonable decision, after talking with each potential inmate witness and with Bolder, not to call the inmates as witnesses. The court held that because Bolder’s age was apparent to the jury, Bolder was not prejudiced by Oss-man’s failure to present age as a mitigating factor and that Bolder had failed to indicate how his borderline intelligence constituted a mitigating factor. Finally, the court held that Ossman’s failure to present mitigating evidence was due to a lack of such information rather than deficient performance.

As also indicated, Bolder’s second 27.26 motion was dismissed as successive, and the dismissal was affirmed on appeal. Bolder III, 769 S.W.2d at 86, 88. In his second petition, Bolder listed nine witnesses whom he alleged Ossman should have contacted and called as character witnesses during his trial. However, Bolder failed to allege anything about the nature of the evidence these witnesses could presumably have provided, or to allege that Ossman knew, or could have discovered, that these witnesses existed. Thus, the Missouri Supreme Court held that the allegations in this second 27.26 petition were insufficient as a matter of law. The court also held that Bolder had failed to establish that these allegations could not have been raised in his first petition.

Following his unsuccessful attempts to obtain relief in state court, Bolder filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (1988), in federal district court raising some of the same issues addressed in the state courts and some issues that were not properly presented to the state courts. Bolder v. Armontrout, 713 F.Supp. 1558, 1562 (W.D.Mo.1989). The district court held an evidentiary hearing at which Bolder called several witnesses, including his childhood minister, Y-pal,2 and a family friend. Bolder’s ineffective assistance claim in federal court focused on Ossman’s failure to find, and call these particular background witnesses who testified that Bolder had a troubled childhood. The district court, after determining, without significant discussion, that cause and prejudice excused Bolder’s improper presentation of this claim in state court, found that Ossman’s failure to find and call these witnesses rendered his performance constitutionally inadequate.

Armontrout appeals the court’s findings that Ossman’s performance was inadequate and that Bolder demonstrated cause and prejudice sufficient to overcome the state procedural default. Bolder cross-appeals, asserting, among other claims, that the district court erred in finding that his confession was voluntary and that the penalty phase jury instructions did not violate due process.

II. DISCUSSION

In a habeas corpus action, the state court’s factual findings are entitled to a presumption of correctness. The district court, and this court, must accept those findings that are supported by the record.3 28 U.S.C. § 2254(d); Laws v. Armontrout, 863 F.2d 1377, 1386 & n. 9 (8th Cir.1988) (en banc), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989). The presumption of correctness, however, applies only to factual findings. The state courts’ conclusions that Bolder’s counsel was not constitutionally inadequate are reviewed as mixed questions of law and fact. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984); Thomas v. Lockhart,

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Bluebook (online)
921 F.2d 1359, 1990 U.S. App. LEXIS 21485, 1990 WL 198925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martsay-bolder-appelleecross-appellant-v-bill-armontrout-ca8-1990.