Michael A. Clark v. Paul D. Caspari

274 F.3d 507, 2001 U.S. App. LEXIS 25250, 2001 WL 1504718
CourtCourt of Appeals for the Eighth Circuit
DecidedNovember 28, 2001
Docket00-1844
StatusPublished
Cited by6 cases

This text of 274 F.3d 507 (Michael A. Clark v. Paul D. Caspari) 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
Michael A. Clark v. Paul D. Caspari, 274 F.3d 507, 2001 U.S. App. LEXIS 25250, 2001 WL 1504718 (8th Cir. 2001).

Opinions

HEANEY, Circuit Judge.

Michael A. Clark appeals the district court’s2 denial of his Petition for Writ of Habeas Corpus. The primary question presented on appeal is whether the state trial court erred in failing to suppress eyewitness identification evidence that was the product of a purportedly suggestive “show-up” procedure. The district court answered that question in the negative, and we affirm.

1. BACKGROUND

On November 12, 1988, two African-American men entered Mack’s Package Liquor Store in St. Louis County, Missouri. Store clerk Virginia Conner was the only other person in the store. Conner testified that the men wanted to know where the wine was located and that they both faced her as she directed them towards the wine. The two men faced Conner another time to inquire about the price of various wine products, and again when they approached the counter to pay for their purchases. Conner testified that when she opened the cash register, the shorter of the two men reached over the counter and removed some money. When she looked up, Conner saw that the taller man was pointing a gun at her, and both men were smiling.

After the two men removed the money from the cash register, they instructed Conner to Me on the floor behind the counter. When Conner lied down, she was able to activate the silent alarm. As the two men were leaving the store, a customer, John Walker, was entering and had a brief verbal exchange with the taller of the two men about some black gloves that the man had dropped. Specifically, Walker asked the man whether he had dropped his gloves. The man took the gloves from Walker, said “thank-you,” and left the store.

After shopping for a short while, Walker approached the counter with his merchandise, whereupon Conner told him that the store had just been robbed. Walker testi-[509]*509fled that he ran outside and yelled at the two men to stop. He was able to observe the two men when they stopped momentarily, and again a short time later. Eventually, he went to a nearby restaurant to call the police. Walker testified that he described the two men to the 911 operator as a short black man, about 5' 7", and a tall black man wearing a dark jacket and scarf on his head. Walker also testified that he attempted to provide a similar description to a responding police officer, however, the officer drove off as soon as Walker told him the direction that the two men were walking.

About fifteen minutes after the robbery, police officer Michael Doedli observed two black men who matched the description that was provided by the police dispatcher walking near railroad tracks located north of Mack’s Package Liquor Store.3 The men fled after Doedli told them to stop. Fifteen minutes later, police separately apprehended both of these men, who were later identified as Clark and Paige Spears. At the time of his arrest, Clark was wearing jeans, a black corduroy jacket, and a black silk scarf on his head. Spears was wearing a black silky jacket, a blue beret-style hat, and dark pants. Police found a pair of black leather gloves and a blue steel derringer near Clark.

Following their arrest, Clark and Spears were taken to the driveway of a nearby apartment complex, where they were forced to lie face down while handcuffed. A white male police officer with a shotgun stood over them. Several minutes later, Conner and Walker were taken to this location to identify Clark and Spears. When they arrived, Conner and Walker saw Spears being hauled to his feet. Both men were surrounded by white male police officers. Conner, who was visibly shaken by the events, identified both Clark and Spears. Walker identified Clark, and indicated that he was not sure about Spears.

On February 9, 1989, Clark and Spears were charged with first degree robbery and armed criminal action. They were tried together beginning on October 30, 1989. After the jury was unable to reach a verdict, the court declared a mistrial. Clark and Spears were retried on December 12, 1989. This time, the jury found them guilty.

The state trial court determined that Clark was a prior, persistent, and Class X offender, and sentenced him to life in prison on the robbery count, and thirty years on the armed criminal action count. Clark appealed this conviction and sentence to the Missouri Court of Appeals on three grounds: (1) lack of jurisdiction, (2) impermissible identification (show-up), and (3) improper closing argument. The Missouri Court of Appeals affirmed. See State v. Clark, 809 S.W.2d 139 (Mo.Ct.App.1991). Clark did not file a motion to transfer the case to the Missouri Supreme Court or a Rule 29.15 motion for post-conviction relief. Instead, he filed a petition in federal court, seeking habeas corpus relief. See Title 28 U.S.C. § 2254.

Clark raised a variety of claims in his Petition for Writ of Habeas Corpus. The district court dismissed Clark’s habeas corpus petition with prejudice, finding that all of his claims, other than his claim of ineffective assistance of counsel on appeal, were barred by procedural default because he failed to: (1) file a timely Rule 29.15 motion in the Missouri state court, (2) raise the issues in his Motion for New Trial or on direct appeal, and (3) seek [510]*510transfer of his direct appeal to the Missouri Supreme Court. See Hall v. Délo, 41 F.3d 1248, 1249 (8th Cir.1994) (federal ha-beas review is barred when a federal claim has not been “fairly presented” to the state court for a determination on the merits) (citation omitted). Further, the district court found no actual cause to excuse the procedural default with respect to Clark’s failure to file a Rule 29.15 motion, or his failure to raise certain issues in his Motion for New Trial or on direct appeal. See Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (a procedural bar exists to federal collateral review of the claims unless the petitioner can show cause and prejudice for the failure). The district court did find cause to excuse his failure to make a motion to transfer his direct appeal to the Missouri Supreme Court, however, because at the time the Missouri Court of Appeals decided his direct appeal, the prevailing law in this circuit was that a habeas petitioner did not have to make such a motion to transfer in order to satisfy the exhaustion requirement. See, e.g., Dolny v. Erickson, 32 F.3d 381, 383-84 (8th Cir.1994). The district court found no actual prejudice with respect to any of Clark’s grounds to excuse the procedural default, but did discuss the show-up claim at some length. The district court then granted a certificate of appealability on the question of whether the pretrial show-up was imper-missibly suggestive. See Title 28 U.S.C. § 2253. This appeal followed.

II. DISCUSSION

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Michael A. Clark v. Paul D. Caspari
274 F.3d 507 (Eighth Circuit, 2001)

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Bluebook (online)
274 F.3d 507, 2001 U.S. App. LEXIS 25250, 2001 WL 1504718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michael-a-clark-v-paul-d-caspari-ca8-2001.