Robert Flieger v. Paul K. Delo, Superintendent

12 F.3d 766
CourtCourt of Appeals for the Eighth Circuit
DecidedFebruary 15, 1994
Docket92-3386
StatusPublished
Cited by7 cases

This text of 12 F.3d 766 (Robert Flieger v. Paul K. Delo, Superintendent) 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
Robert Flieger v. Paul K. Delo, Superintendent, 12 F.3d 766 (8th Cir. 1994).

Opinions

BOWMAN, Circuit Judge.

Robert Elmer Flieger was convicted of murdering Patricia Gradley. He appeals the District Court’s1 denial of his petition for a writ of habeas corpus, and we affirm.

I.

Gradley and her son lived in an apartment immediately below an apartment in which Flieger lived with his son. Gradley’s father owned the house that contained these apartments; in lieu of rent, Flieger performed a variety of maintenance on the house, including repairs to the trap door that separated the cellar from Gradley’s apartment.

Flieger and Gradley dated for several years until they broke up in December 1984. [769]*769He had proposed several times, but she refused to marry him. ' Gradley was hospitalized that month after breaking her ankle. While in the hospital, she was visited twice by Frank Joubert, a married man who was her son’s counselor. . Flieger was present when Joubert arrived for his second visit carrying flowers for Gradley. Although Jou-bert attempted to converse with Flieger, Flieger refused, and instead clenched his fists and turned and stared out the window and at the floor.

On the evening of March 17, 1985, Grad-ley’s birthday, Gradley went out with her son and Joubert. When they returned to Grad-ley’s residence, Flieger began photographing Joubert and Gradley together. After Jou-bert left, Flieger and Gradley - angrily screamed at one another over the telephone. Flieger told Gradley that she should not date a married man and that he might tell Jou-bert’s wife of the alleged affair, and Flieger’s son testified that Flieger was furious as he threatened Gradley with her life. Gradley was so rattled after the telephone altercation with Flieger that she called her son’s aunt and Joubert and told them that Flieger had threatened her life. Joubert attempted to convince Gradley to leave, but she refused to let Flieger scare her from her home.

The next morning, on March 18, 1985, Gradley took her son to school, then returned home. About one-half hour later, Shirley Spence, who worked outside on the other side of the street, observed Flieger hurriedly walking from the rear of the house, carrying clothing on hangers and what appeared to be a long object wrapped in newspaper. Although Flieger would chat for fifteen to twenty minutes each morning with Spence, he did not on this morning, and instead ignored Spence’s calls. Flieger placed the items in the trunk of his car and drove off so quickly that he almost caused a collision at the corner. He drove past the house at least once that day, but he never stopped.

Gradley was found bludgeoned to death that afternoon. The rear basement door had been forcibly kicked open, and the trap door had been forced open. Nothing had been taken from the apartment, except perhaps a small amount of cash, although most rooms had been searched. Bones in both of Grad-ley’s forearms were broken during her attempts' to defend herself. Gradley’s death was caused by several- interconnected skull fractures the murderer inflicted upon her through repeated blows to her head with a blunt, possibly cylindrical, object. The medical evidence was inconclusive as to the time of Gradley’s death, but it indicated that she was alive during the entire attack.

The police interviewed Flieger as part of their investigation. Flieger admitted telling Gradley the night before the murder that he was going to report her alleged affair with Joubert to Joubert’s wife, but he did not tell the police of his death threat. He also indicated that he had taken clothing to the cleaners on the morning of the murder, but when he left the house that morning, he had driven in a direction opposite from the cleaning establishment he identified in his statement.

Several months later, Flieger married and moved in with Gloria Brooks. They were married and divorced before his trial. Flieger, in the presence of his son, told Brooks that Gradley got what she deserved and that her death was entirely Joubert’s fault because Flieger had caught her and Joubert together at the hospital. On another occasion, Flieger brought into the house a long, heavy, metal flashlight that was made for police officers to use as both a flashlight and a nightstick. Flieger told Brooks, in the presence of her sister and brother-in-law, as he pounded the flashlight into the palm of his hand, that one could use the flashlight as a lethal weapon and get away with the murder. This so frightened Brooks that she hid the flashlight; although other flashlights were readily available, Flieger extensively searched the entire house for that particular flashlight. Flieger was unable to find the flashlight, and Brooks later turned it over to the police.

Flieger was indicted for Gradley’s murder eighteen months after her death. The jury convicted Flieger of the first-degree murder of Gradley, and he was sentenced to life imprisonment without the possibility of probation or parole. Flieger appealed. While his direct appeal was pending, he filed pursuant to Missouri Supreme Court Rule 29.15 a [770]*770motion for postconviction relief, which was denied after an evidentiary hearing. After consolidating his direct and Rule 29.15 appeals, the Missouri Court of Appeals upheld both his conviction and the denial of Rule 29.15 relief. State v. Flieger, 776 S.W.2d 25 (Mo.Ct.App.1989).

Flieger then filed in the District Court his petition for a writ of habeas corpus, claiming that he was denied due process because the evidence was not sufficient to support his conviction, his counsel was constitutionally ineffective, and he was denied a fair trial by the state trial court’s evidentiary errors. On April 7, 1992, the District Court, pursuant to the Magistrate Judge’s2 recommendation, denied Flieger’s habeas petition. Flieger then filed on April 24, 1992 a motion that requested reconsideration under Federal Rule of Civil Procedure 60(b)(6) or, in the alternative, was to serve as a notice of appeal and a request for a certificate of probable cause. The District Court treated this motion as one to alter or amend the judgment under Fed.R.Civ.P. 59(e), and denied the motion on September 29, 1992. Flieger appealed on October 15, 1992.

II.

A.

Flieger’s October 15 notice of appeal stated that he intended to “appeal to the Eighth Circuit Court of Appeals this Court [sic] order of September 29, 1992 dismissing this law suit [sic].” It did not specifically indicate that Flieger was appealing the District Court’s April 7 ruling that denied his habeas petition. The state argues that, because Flieger’s appeal does not challenge the District Court’s September 29 denial of his motion for reconsideration, and instead complains only about the April 7 ruling, we should affirm the District Court’s September 29 ruling. Moreover, the state contends, Flieger’s April 24 notice of appeal in the alternative is not a legally sufficient notice of appeal of the April 7 ruling because the April 24 motion raised a Rule 59(e) motion before the District Court. Therefore, the state concludes, the District Court’s April 7 ruling is not before this Court and we should disregard Flieger’s challenges to the District Court’s denial of his petition for a writ of habeas corpus. We are not persuaded by the state’s argument.

A notice of appeal filed while a Rule 59(e) motion is pending is a nullity. Griggs v.

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Robert Flieger v. Paul K. Delo, Superintendent
12 F.3d 766 (Eighth Circuit, 1994)

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Bluebook (online)
12 F.3d 766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robert-flieger-v-paul-k-delo-superintendent-ca8-1994.