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Robert T. Sidebottom v. Paul Delo Jay Nixon
Citation: 46 F.3d 744Docket: 94-1463
Court: Court of Appeals for the Eighth Circuit; November 6, 1995; Federal Appellate Court
Robert T. Sidebottom was convicted and sentenced to death for the capital murder of his seventy-four-year-old grandmother, May Sidebottom. He appealed the district court's denial of his habeas corpus petition under 28 U.S.C. § 2254, which the Eighth Circuit affirmed. The case details are grounded in the Missouri Supreme Court's prior opinion. On October 3, 1985, Sidebottom and a coworker, Tom Shier, spent the evening drinking heavily. They visited Sidebottom's grandmother to request money, but after receiving only five dollars instead of the intended twenty, Sidebottom expressed anger, suggesting she had more funds due to a substantial insurance payout. Throughout the night, Sidebottom made comments about needing money and intentions to rob someone, indicating a motive tied to his grandmother's finances. Later, at around 1:45 a.m. on October 4, Sidebottom arrived at his grandmother's house alone after instructing Shier to leave. Evidence showed that the back door was broken to gain entry. Inside, Sidebottom demanded more money from his grandmother; upon her refusal, he physically assaulted her until she was incapacitated. Subsequently, he started a fire in the bedroom and fled the scene. Witness testimonies highlighted Sidebottom's troubled relationship with his grandmother and his previous threats regarding her life. Police arrived at a house fire at approximately 2:35 a.m. and found May Sidebottom unconscious and severely beaten in the kitchen, where blood was splattered throughout multiple rooms. She died shortly after, with an autopsy revealing her cause of death as multiple injuries, including blunt force trauma to the head and neck, a fractured cervical spine, broken jaw, and multiple rib fractures. Sidebottom, who was interviewed by police, admitted to possibly killing his grandmother and later confessed after his arrest on October 9, 1985. Initially represented by appointed counsel, he later hired private attorney Joseph McMullin, who did not present an affirmative defense or call any witnesses, focusing instead on cross-examination of the prosecution's evidence. The jury convicted Sidebottom of capital murder, leading to a death sentence, which was upheld by the Missouri Supreme Court. Sidebottom subsequently filed a motion under Missouri Supreme Court Rule 29.15, which was denied after a three-day hearing, and this denial was also affirmed by the Missouri Supreme Court. In 1990, he filed a pro se petition for a writ of habeas corpus in federal court, which was denied, and he later sought to alter or amend this judgment. After complications with counsel due to a judicial appointment, the federal court reaffirmed its denial. Concurrently, he attempted to withdraw a mandate with the Missouri Supreme Court and filed a separate habeas petition, both of which were denied. On appeal, Sidebottom asserts several claims of error related to ineffective assistance of counsel at various stages, prosecutorial misconduct, and procedural issues. Before considering Sidebottom's claims, the State challenges the jurisdiction over the appeal, arguing that Sidebottom filed his notice of appeal outside the time limits established by Rule 4(a)(5) of the Federal Rules of Appellate Procedure. Rule 4(a)(1) mandates that a notice of appeal be filed within thirty days of the judgment or order, with the possibility of a thirty-day extension for excusable neglect under Rule 4(a)(5). The State asserts that Sidebottom's notice of appeal, filed on November 12, 1993, was untimely, as it was due by August 25, 1993, following the district court's order on July 26, 1993. Although the district court did not explicitly grant an extension, there are "unique circumstances" where an appeal may still be allowed if a party reasonably relied on erroneous district court actions that led to an untimely filing. In this case, the withdrawal and later reissuance of the order created a situation where Sidebottom was misled into believing he could file a timely notice of appeal after the order was reissued. Consequently, the court found that Sidebottom's notice of appeal was timely, allowing for jurisdiction over the appeal. Sidebottom contends that the district court should have conducted an evidentiary hearing on several claims, including prosecutorial misconduct, ineffective assistance of counsel, the adequacy of his mental health evaluation, and the procedural barriers to reviewing various claims. However, the court noted that Sidebottom's brief merely provided a cursory overview of the need for such a hearing without adequately detailing the specific errors behind his claims. Rule 28(a)(5) of the Federal Rules of Appellate Procedure mandates that an appellant's brief must present arguments with supporting contentions, reasons, and relevant citations. Sidebottom failed to specify grounds for an evidentiary hearing, resulting in a waiver of his argument. Even if considered, he did not demonstrate entitlement to a hearing since he had previously received one in state court and failed to show cause and prejudice for any lack of evidence development. The absence of a hearing is justified when claims are vague or incredible. Furthermore, Sidebottom's claims of ineffective assistance of post-conviction counsel were rejected, as there is no constitutional right to counsel in state post-conviction proceedings, and thus no claim for ineffective assistance can arise under such circumstances. He argued that Missouri's post-conviction proceedings under Rule 29.15 are not truly post-conviction; however, the court affirmed they are collateral attacks on convictions without a right to effective assistance of counsel. Sidebottom also cited Evitts v. Lucey, asserting that once counsel is provided, effective assistance is required. The court noted this has been rejected when the petitioner is not entirely deprived of the right to counsel. Thus, the district court rightly dismissed Sidebottom’s ineffective assistance claims, both as independent grounds for habeas relief and as excuses for procedural defaults. Sidebottom claims ineffective assistance of counsel during both the guilt and penalty phases of his capital trial. The district court deemed seventeen out of twenty-three specific instances of ineffective assistance claims procedurally barred, a ruling that Sidebottom does not contest. The remaining six claims, which are preserved, include: (1) failure to investigate and present mental health evidence; (2) failure to object to a "Prisoner Data Sheet"; and (3) failure to object to a jury instruction on aggravating circumstances. To succeed on his ineffective assistance claims, Sidebottom must demonstrate that his counsel's performance was deficient and that he was prejudiced by this deficiency, as established by Strickland v. Washington. Deficiency occurs if counsel's actions fall "outside the wide range of professionally competent assistance." The review of counsel's performance requires an objective standard, avoiding hindsight and second-guessing strategic decisions. Prejudice is established if there is a reasonable probability that, absent counsel's errors, the outcome would have been different. The assessment of ineffective assistance of counsel is a mixed question of law and fact, with factual findings reviewed for clear error and legal conclusions de novo. Sidebottom argues that his counsel failed to fully investigate evidence of mental disease or defect. Counsel has a duty to conduct a reasonable investigation or determine if one is unnecessary, with considerable deference granted to their judgment. Prior to trial, a psychological evaluation by Dr. Robijn Hornstra concluded that Sidebottom did not have a mental disease or defect, had no relevant history, and was capable of assisting in his defense. Counsel testified that he reviewed this report, met with Sidebottom multiple times, and consulted with his family, finding no evidence to dispute the report's conclusions. Therefore, counsel deemed further investigation unnecessary. The courts found that counsel conducted a reasonable investigation, which is presumed correct under 28 U.S.C. Sec. 2254(d) in the absence of contrary evidence. Sidebottom claims that his counsel's investigation into his mental health was inadequate, specifically criticizing the psychiatric evaluation by Dr. Hornstra for lacking standardized testing to assess potential brain disease. He cites Dr. O'Connor's subsequent evaluation, which confirmed that Sidebottom suffers from intermittent explosive disorder and suggested a probable lack of capacity during the murder, but did not significantly differ from Dr. Hornstra's findings. Sidebottom argues that his counsel's reliance on Dr. Hornstra's evaluation was ineffective due to its alleged incompleteness. However, the essence of his argument targets Dr. Hornstra's methods rather than his counsel's performance. To succeed in his claim of ineffective assistance, Sidebottom must prove that his counsel's reliance on the evaluation was unreasonable. The district court found that he failed to meet this burden, as there was no evidence suggesting that counsel acted unreasonably in deciding not to pursue further investigation based on the psychological evaluation results. This reasoning aligns with a precedent from O'Neal v. Delo, where the court upheld counsel's decision against seeking additional psychological testing when the initial evaluation did not indicate any significant mental health issues. Counsel reviewed a mental health report indicating that Sidebottom had no mental disease or defect, nor a history of mental abnormality. Acknowledging Sidebottom's personal and family history, counsel determined that further psychological investigation was unnecessary. The choice not to seek another psychiatric opinion after receiving an unfavorable assessment does not constitute ineffective assistance, as established in Dees v. Caspiri and Poyner v. Murray. Consequently, Sidebottom did not demonstrate that counsel’s decision was professionally unreasonable or constitutionally ineffective. Sidebottom argued that counsel unreasonably failed to present mitigating evidence during the penalty phase, specifically regarding the impact of substance use on his behavior during the murder. This argument was dismissed as hindsight, given that counsel was aware of Sidebottom's prior substance use and had chosen not to pursue that defense based on Sidebottom's assertion of awareness during the incident. Additionally, Sidebottom claimed counsel was ineffective for not calling family members to testify about his abusive upbringing. Counsel feared that such testimony would lead to damaging cross-examination revealing that Sidebottom had previously raped the victim, which could severely impact the jury's perception. This strategic decision was deemed reasonable given the potential consequences. Lastly, Sidebottom contended that counsel failed to investigate and present his school, work, and military records as evidence of mental impairment. However, counsel's assessment of the mental evaluation and Sidebottom's demeanor led to a reasonable conclusion that further investigation was unwarranted. Even if obtained, these records would have likely been perceived as aggravating by the jury, undermining the argument of deficiency in counsel’s performance. The document concludes that the lack of evidence indicating any mental illness or disturbance in Sidebottom’s case, along with counsel's valid concerns about potentially harmful information, differentiates this situation from prior cases where failure to investigate or present mental health evidence was deemed unreasonable and prejudicial. The court agrees with the district and Missouri state courts that counsel conducted a reasonable investigation and strategically chose not to present a psychological defense. Consequently, it finds no ineffective assistance of counsel, thus not addressing the prejudice aspect of the ineffective assistance claim. Sidebottom claims he was denied effective assistance when counsel did not request a mistrial after a "Prisoner Data Sheet" mistakenly submitted to the jury indicated charges of rape or burglary against him. The jury's inquiry about this form was addressed with a curative instruction from the judge. The Missouri Supreme Court ruled that the failure to request a mistrial did not constitute plain error, noting the irrelevant nature of the inadmissible evidence to the murder charge. Regarding federal habeas relief, it was clarified that errors of state law do not warrant such relief unless they violate constitutional rights or severely impact due process. Sidebottom's assertion that the admission of the form violated his due process rights was rejected, as the trial court's prompt corrective action mitigated any potential prejudice. Lastly, Sidebottom argues that counsel was ineffective for not objecting to the jury instruction concerning the aggravating circumstance of depravity of mind in the murder charge, claiming it is vague and overbroad. A statutory aggravating circumstance that requires a murder to involve "depravity of mind" without further definition violates the Eighth Amendment, as it fails to limit the pool of individuals eligible for the death penalty. While cases indicate that defining torture or serious physical abuse can salvage such an instruction, the jury in this instance was not given these limiting elements and did not find them applicable. As a result, the "depravity of mind" instruction did not sufficiently guide the jury's discretion. However, under Missouri's death penalty law, a jury must find only one valid aggravating circumstance. In this case, the jury identified a second valid aggravating circumstance—prior conviction for first-degree sexual abuse—rendering the invalidity of the first aggravating circumstance non-prejudicial. Missouri's non-weighing approach allows the presence of multiple aggravating factors to uphold the death sentence despite one being invalid. The court concluded that any errors from the invalid circumstance were harmless, as federal law permits a harmless error analysis. This determination involves reviewing the record to assess whether the invalid factor influenced the jury's decision to impose the death penalty. The jury identified an additional aggravating factor during Sidebottom's trial, noting his prior conviction for sexual assault. Testimony from the victim detailed the brutal nature of the assault, where Sidebottom, armed with a gun, choked her unconscious before sodomizing her. The court found this factor overwhelmingly significant and determined that the absence of any mitigating circumstances would not have altered the outcome of the penalty phase, concluding that Sidebottom's sentence would remain unchanged even without the improperly defined aggravating circumstance instruction. Consequently, the failure of Sidebottom's counsel to object to the "depravity of mind" instruction did not impact the trial's result. In his amended federal habeas petition, Sidebottom claimed ineffective assistance of appellate counsel for failing to address certain issues, which the district court initially deemed procedurally barred. However, the State conceded that these claims were properly raised in a motion to recall the mandate, leading to the court's acknowledgment of its error regarding procedural default. Even so, the court rejected Sidebottom's claims on the merits, a conclusion that was upheld. While Sidebottom argued for the ineffectiveness of appellate counsel for not contesting the aggravating circumstance instruction that considered his prior conviction, the court ruled that this was permissible. Sidebottom contended that since he had not been formally adjudicated guilty of the sexual assault at the time of the murder, its use as an aggravating factor violated the Eighth Amendment's prohibition on cruel and unusual punishment. The court disagreed, distinguishing this case from Johnson v. Mississippi, where the imposition of the death penalty was based on a vacated offense, which was not applicable in Sidebottom's circumstance. Imposing the death penalty under the circumstances discussed was found to violate the principle that such decisions should not be based on arbitrary factors or those that are constitutionally impermissible. The Court emphasized that the jury was not permitted to consider materially inaccurate evidence, as there had been no invalidation of Sidebottom's prior conviction. Although the formal adjudication of guilt regarding the sexual assault occurred after the murder, an unrefuted factual determination existed at sentencing based on Sidebottom's guilty plea, allowing the sexual assault conviction to be admitted as an aggravating circumstance without violating his Eighth Amendment rights. Sidebottom's claim of ineffective assistance of appellate counsel regarding the admissibility of his statements to police was rejected, as the Supreme Court in Colorado v. Connelly established that coercive police activity is necessary for a confession to be deemed involuntary. Since Sidebottom failed to demonstrate any coercive conduct by police, his argument was dismissed. Additionally, Sidebottom contended that appellate counsel was ineffective for not challenging the sufficiency of evidence for capital murder, specifically regarding deliberation. The standard for this claim requires assessing whether, when viewing the evidence favorably for the prosecution, a rational juror could find the essential elements of the crime beyond a reasonable doubt. Under Missouri law, first-degree murder requires knowingly causing the death of another after deliberation, and state law defines the elements of crimes accordingly. Missouri law defines a person's conduct as intending a result if he is aware that it is practically certain to occur, with "deliberation" meaning any brief period of cool reflection. In the case of Sidebottom, the jury could infer intent and deliberation from indirect evidence, including his confession and witness testimonies regarding his prior statements about killing his grandmother. The Missouri Supreme Court found sufficient evidence to support his conviction for capital murder, affirming that appellate counsel was not ineffective for failing to challenge this claim. Sidebottom argued that his appellate counsel was ineffective for not contesting the prosecutor's comments during closing arguments, which he claimed improperly referenced his failure to testify. The prosecutor made statements suggesting the defense lacked evidence and emphasized Sidebottom's confession to police. Trial counsel did not object to these comments, and the Missouri Supreme Court evaluated them for plain error, concluding they did not constitute prosecutorial misconduct. Established law dictates that direct comments on a defendant's failure to testify violate the Fifth Amendment, and while indirect references are also prohibited, the court found no plain error in the prosecutor's remarks. The prosecutor's comments were found not to improperly reference Sidebottom's failure to testify, but rather the defense's lack of evidence. The prosecution is permitted to highlight the absence of evidence from the defense unless the defendant possesses that information exclusively. Defense counsel's strategy suggested that Sidebottom's confession was coerced, indicating that exculpatory evidence was not solely within the defendant's knowledge. Consequently, the prosecutor's remarks were deemed appropriate, and appellate counsel was not ineffective for failing to challenge them. Additionally, Sidebottom's remaining claims regarding ineffective assistance of appellate counsel were rejected, as the Constitution does not mandate that all nonfrivolous arguments be raised on appeal. Sidebottom did not demonstrate a likelihood of success on these claims, suggesting that appellate counsel effectively focused on stronger arguments. Sidebottom also raised four claims of prosecutorial misconduct for habeas relief, which were procedurally barred due to his failure to present them in prior appeals. The district court found no error in rejecting these claims, as Sidebottom did not show cause and prejudice for the procedural default. The only preserved claim pertained to the prosecutor's comments on Sidebottom’s failure to testify, which had already been addressed as part of the ineffective assistance claim. Thus, the district court's refusal to grant relief based on these prosecutorial misconduct claims was affirmed. Sidebottom claims he was denied a fair trial due to an incomplete mental examination, citing Ake v. Oklahoma. However, he did not present this claim to Missouri courts and failed to establish cause and prejudice for this omission, nor did he demonstrate that it would lead to a fundamental miscarriage of justice, thus rendering the claim procedurally barred. Additionally, Sidebottom challenges the district court's conclusion that his claims regarding Missouri's jury instructions on reasonable doubt and mitigating circumstances were also procedurally barred. While the court could address the merits, it aligns with precedent that such claims are barred by the new-rule doctrine from Teague v. Lane and have been consistently rejected regarding unanimity in mitigating circumstances. Furthermore, Sidebottom's brief mention of a due process violation concerning evidence admission was deemed insufficient to warrant consideration. The district court's order denying his habeas corpus petition is affirmed. The document also notes procedural rules related to the appeal and motion processes, emphasizing the requirement for appointed counsel to ensure all grounds for attack are included in motions.