United States District Court, E.D. Missouri, Eastern Division
MURLIN R. PHILLIPS, Petitioner,
IAN WALLACE,  Respondent.
MEMORANDUM AND ORDER
THOMAS C. MUMMERT, III, Magistrate Judge.
This 28 U.S.C. § 2254 action is before the Court for review and final disposition pursuant to the written consent of the parties. See 28 U.S.C. § 636(c). Also pending are various motions filed by Murlin R. Phillips ("Petitioner").
Criminal Trial Proceedings. Petitioner pled guilty on April 1, 2002, to one count of second degree murder and one count of armed criminal action. (Resp. Ex. A, ECF No. 9.) The plea was before Judge J. Max Price in the Circuit Court for Wayne County, Missouri. (Id.) Petitioner had been charged by a felony complaint on October 9, 2000, with one count of first degree murder and one count of armed criminal action. (Resp. Ex. M at 7-8, ECF No. 45.) The charges arose from the death of Wayne Limbaugh. (Id.) The range of punishment on count one was "[d]eath; or imprisonment for life without eligibility for probation or parole, or release expect [sic] by act of the governor." (Id. at 7) Three days later, Petitioner was arraigned on those charges. (Id. at 10.) He was then represented by Donald Rhodes. (Id.)
The month after his arraignment, a preliminary hearing was held at which Joan Burton and Phillip Burton testified. (Pet'r Ex. 32, ECF No. 37.) Ms. Burton testified that she and Limbaugh arrived at her house at approximately six o'clock in the evening on October 8, 2000, and were to be joined by another couple. (Id. at 6-8.) She heard someone pull into her driveway and then heard Limbaugh tell her the couple were there and tell the couple to come in. (Id. at 8.) Petitioner came in. (Id.) She and Petitioner had dated for approximately three years; she and Limbaugh had known each other for approximately one month. (Id. at 6, 7, 30.) She had spoken with Petitioner over the telephone after she and Limbaugh had arrived at her house and had told him no one was with her. (Id. at 9.) When Petitioner came into her house, he asked her who the man in the living room was; she replied he was a friend and asked Petitioner to leave. (Id. at 10.) He suddenly did at the same time the couple arrived. (Id.) She, Limbaugh, and the couple ate dinner and played cards until approximately ten o'clock at night. (Id. at 11.) The couple left. (Id.) Limbaugh was getting ready to leave when Petitioner returned. (Id. at 11-12.) She told Limbaugh to lock the front door and storm door. (Id. at 12.) She spoke to Petitioner through the kitchen window, asking him to leave. (Id.) She closed the window, started to go into the living room, and realized Limbaugh had left through the front door. (Id. at 13.) She saw Petitioner punch Limbaugh in the face. (Id.) She turned to get the telephone, heard Limbaugh holler, and then heard a gunshot. (Id.) She started for the front door and was met by Petitioner. (Id. at 14.) He had a gun in his hand. (Id.) He put the gun to her head and threatened to shoot her. (Id. at 15.) She begged him not to. (Id.) Eventually, he and she sat on the bed to talk. (Id.) He heard the telephone ring, heard a neighbor leaving a message on her answering machine, heard the telephone ring again, and shot at the answering machine. (Id. at 16-17.) The bullet missed the machine and went through her night stand and three walls. (Id. at 17.) She tried to talk Petitioner into letting her take him to the hospital. (Id. at 19.) They left the house in her car, drove by an accident scene and saw Limbaugh's truck, and, after hours of driving around, ended up at the Veterans' Administration ("VA") Hospital in St. Louis. (Id. at 19-22, 30-39.)
Over the objection of Mr. Rhodes, the autopsy report of Russell D. Deidiker, M.D., was admitted into evidence "for purposes of the Preliminary Hearing only." (Id. at 42.)
Phillip Burton, a law enforcement officer with the Wayne County Sheriff's Department, testified that he responded to an accident on October 8, 2000; heard en route to the accident that the driver had possibly been shot; and smelt a "moderate" odor of alcohol in the truck involved. (Id. at 44-45, 47.) He was present when Limbaugh's body was autopsied and saw a bullet hole in his back and an exit wound in his left chest. (Id. at 46-47.) Joan Burton (Burton) then testified Limbaugh had drunken beer - she remembered only that it was more than one - between noon and when they arrived back at her house in the evening and had not drunk any alcohol after that. (Id. at 54-56.)
The judge found probable cause. (Resp. Ex. M at 12.) Petitioner was charged by felony information with the same two counts as before with the same ranges of punishment. (Id. at 13-15.)
Mr. Rhodes moved for disclosure and for a mental examination of Petitioner. (Id. at 16-19.) He also filed a one-sentence request for a change of judge, who was then William Camm Seay. (Id. at 2, 19.) Petitioner's request was granted; his case was transferred to Judge Price. (Id.) Judge Price granted Petitioner's request for a mental examination. (Id. at 20-21.)
Byron C. English, Ph.D., a certified forensic examiner, examined Petitioner and reported in May 2001 his conclusions that Plaintiff was not suffering from a mental disease or defect that would interfere with his capacity to understand the proceedings against him or to assist in his case. (Id. at 22-37.) Also, Petitioner was not suffering then or at the time of the alleged crime from a mental disease or defect which prevented him from knowing or understanding his conduct or from conforming that conduct to the law. (Id. at 37.) Included in Dr. English's report was a summary of Petitioner's version of the incident. (Id. at 24-25.) Remembering the incident as having occurred on October 9, Petitioner recalled driving to Burton's house after seven o'clock that evening and after she hung up on him after telling him not to call her, leaving the house after seeing a couple arrive, returning to the house later that night as the couple was leaving, and seeing that the man who had been there earlier was still there. (Id.) Petitioner got out of his truck, taking his pistol with him in the side of his belt "in case the man caused problems.'" (Id. at 25.) The man was leaving, asked Petitioner what the matter with him was, and was angry. (Id.) Petitioner felt threatened. (Id.) He hit the man in the chin. (Id.) Petitioner's pistol started to slide down his pants. (Id.) Afraid that the pistol was going to fall on the deck, he took it out of his pants. (Id.) Limbaugh saw the pistol, put up his fists, and, rather than swinging at Petitioner, turned to run. (Id.) "[T]he gun went off.'" (Id.) Petitioner "indicated he pulled the trigger once." (Id.) Limbaugh was sitting, holding his arm; Petitioner went into Burton's house. (Id.) It was noted later in the report that Petitioner said he could not remember "squeezing the trigger on the gun." (Id. at 36.) It was also noted that Petitioner was aware that he could move for a change of venue if he felt he could not get a fair trial in Wayne County and that Petitioner reported that the bullet that hit Limbaugh was never found. (Id. at 35.) He was not sure if he would be found guilty because he did not know "if the wreck killed [Limbaugh] or not.'" (Id.) Dr. English diagnosed Petitioner with generalized anxiety disorder and, because Petitioner had previously been treated for post-traumatic stress disorder ("PTSD") due to his service in Vietnam, PTSD by history. (Id. at 33-34.)
After two continuances, Petitioner's trial was set for April 1, 2002. (Id. at 2-3.)
On March 25, Jasper N. Edmundson (Edmundson), who had been retained by Petitioner and was then representing him, wrote Petitioner that the prosecutor's offer was to "stand silent" and "allow [Petitioner] to plead to murder in the second degree." (Pet'r Ex. No. 12, ECF No. 37-76.) Edmundson opined that this was "the best possible resolve of the matter." (Id.) He anticipated discussing this with Petitioner within two hours and further informed him that the prosecutor needed an answer by four o'clock that afternoon. (Id.)
On April 1, the prosecutor filed an amended felony information charging Petitioner with one count of second degree murder and one count of armed criminal action. (Resp. Ex. M at 38-40.) The first count read, in relevant part, that Petitioner, in violation of Mo.Rev.Stat. § 565.021, had "intentionally, premeditatedly, with malice aforethought and unlawfully caused the death of Wayne G. Limbaugh, by shooting him, thereby causing him to die on October 8, 2000...." (Id. at 38.) The range of punishment was "[l]ife imprisonment; or imprisonment for a term not less than (10) years and not to exceed thirty (30) years." (Id.)
As noted above, that same day, Petitioner, represented by Edmundson, appeared before Judge Price. (Resp. Ex. A, ECF No. 9.) Edmundson informed the judge that he had received a copy of the amended information that morning and had had time to go over the information with Petitioner. (Id. at 2.) Petitioner informed the judge that he did not need anymore time to go over the amended charge with Edmundson. (Id.) Petitioner, under oath, testified that his earlier statements about not needing more time and about understanding the ranges of punishment for the two amended counts were the same as if they had been given under oath. (Id. at 3-4.) Petitioner was then questioned about whether he understood he was waiving various constitutional rights, including the right to call witnesses, to be presumed innocent, and to have a change of venue on "application properly filed." (Id. at 4-8.) Judge Price asked Petitioner about whether any threats or promises had been made to cause him to plead guilty and whether any promises had been made about the sentence other than the plea bargain agreement. (Id. at 8.) Petitioner replied "No" to each question. (Id.) He replied "Yes" in response to the judge's question whether he understood that no one could promise him what his sentence would be, that any such promise would not be binding on the court, and that the court could impose any sentence with the range of punishment permitted by law. (Id.) He answered "Yes" to the question whether he was pleading guilty because he was guilty and was admitting that he had committed the offense charged. (Id.) After reading Count I, the judge asked Petitioner if the allegations were correct. (Id. at 9.) Petitioner replied, "It was October the 9th, but yes." (Id.)
On further questioning, Petitioner testified that he was satisfied with Edmundson's services, that he had had "time to reflect on the amended charge, " and that he had had all the time he needed to go over it with Edmundson. (Id. at 10-11.) Edmundson had not failed to do anything Petitioner asked him to do and had not done anything Petitioner had asked him not to do. (Id. at 11.) Petitioner was satisfied with Edmundson's representation and had no complaints. (Id. at 11-12.)
On being asked by the judge to briefly state what the facts would be, the prosecutor replied as follow.
Judge, the state would provide testimony from various witnesses and law enforcement officers as well as crime lab personnel endorsed on the felony information that would prove to a jury or other trier of fact beyond a reasonable doubt, on or about the date charged in the information, October 8, 2000, ... that [Petitioner] initially accosted... [Limbaugh], at the residence of a woman named Joan Burton, with which [Petitioner] had a previous relationship. The altercation was broken off, [Limbaugh] and Ms. Burton had dinner with another couple, following the leaving by the other couple upon the residence of Ms. Burton, the testimony would be that a shot was fired and that Ms. Burton came out and saw Mr. Limbaugh leaving. She would also testify that at that point [Petitioner] took her on a route throughout Southeast Missouri and eventually ended up in a hospital in the St. Louis area which a.9 mm pistol was turned over to authorities there. That pistol was later determined to be the same piston, based on ballistics analysis, that was utilized to fire a shot, which was determined by the forensics expert to be a fatal wound to Wayne Limbaugh. Mr. Limbaugh did flea [sic] the scene with the gunshot wound, eventually ended up in an automobile accident and indicated to the ambulance personnel that he had been shot.... He expired a short time later.... [Petitioner]... also gave various statements after having been Mirandized, that would tend to implicate him in the eyes of a jury as well as the testimony of Joan Burton, who would testify concerning statements which [Petitioner] made to her concerning this matter.
(Id. at 13-14.) Petitioner stated that he did not start the altercation, but he did agree that the prosecutor had summarized what his evidence would be. (Id. at 16.) He further stated that the witness (Burton) did not see Limbaugh leaving, that he had assumed Limbaugh "was shot in the arm or something, " and that Limbaugh had started the altercation "by coming out on the deck." (Id. at 16-17.) Again asked if he was not disputing the prosecutor's statement of what his evidence would be and whether he was "freely and voluntarily entering a plea of guilty to Counts I and II, " Petitioner replied, "Yes." (Id.)
His plea was accepted and a pre-sentence investigation ("PSI") report was ordered. (Id. at 17-18.)
The PSI report was filed three weeks later. (Pet'r Ex. 6, ECF No. 37.) The report included Petitioner's recollection of events. (Id. at 47-49.) He recalled Limbaugh turning to run after Petitioner raised his gun to his face - Petitioner had pulled the gun out of his pants, thought about putting it on the iron table, and changed his mind after considering that Limbaugh could then use the gun on him. (Id. at 48.) The gun went off when Limbaugh was turning. (Id.) Petitioner did not remember pulling the trigger. (Id.) Later, in the house with Burton, he shot at the phone and missed. (Id.) In the "Assets and Liabilities" section of the report, a notation was made that Petitioner's former supervisor at the United States Postal Service had described him as a "lousy' employee." (Id. at 50.) Burton was reported to have stated that Petitioner "threatened to go to [the supervisor] and all the rest and blow them away." (Id.) The report also included a conclusion that Petitioner had displayed no remorse toward Limbaugh or Limbaugh's family. (Id. at 51.) Specifically,
[w]hen questioned about how he felt about causing the death of another human, [Petitioner] stated, "I wish it hadn't happened. I think he should have stayed in the house and not came out. Another few seconds and I would have been gone. I hate that the man's dead and I hate it for his family. I can't really feel any remorse for it. I feel like he started it. It happened in just a few seconds and there wasn't time to rationalize the whole thing out."...
[Petitioner] shot Wayne Limbaugh as he was attempting to flee the scene, failed to provide any medical attention and passed the accident scene without any regard to Mr. Limbaugh's condition....
Petitioner appeared before Judge Price on May 3, 2002, to be sentenced. (Resp. Ex. A at 19-37.) Limbaugh's daughter spoke about the effect of her father's death on her and her children. (Id. at 19-22.) Edmundson spoke at length and submitted letters in Petitioner's behalf. (Id. at 23-28.) The prosecutor then requested leave to speak in rebuttal to Edmundson, and did. (Id. at 28-30.) He disputed that Limbaugh was the aggressor. (Id. at 29-30.) He did not advocate for a particular sentence. After Petitioner, under oath, stated that there was no legal cause why sentence should not be pronounced, Judge Price sentenced him to life imprisonment on the second degree murder charge and a concurrent term of twenty-five years on the armed criminal action charge. (Id. at 32-33.) He then asked Petitioner if Edmundson had done anything Petitioner had instructed him not to do, if he had any complaints about any law enforcement officers, and if there was anything he wanted to add about Edmundson's assistance. (Id. at 35-36.) Petitioner replied that there was not. (Id.)
On May 17, Edmundson filed a motion to withdraw guilty plea and for new trial, arguing that Petitioner had not been granted a reasonable opportunity to address inaccuracies in the PSI report and the prosecutor violated the plea agreement by not "stand[ing] silent'" as to Petitioner's punishment. (Resp. Ex. M at 46-47.) In June, Edmundson filed a motion to withdraw on the grounds Petitioner had discharged him. (Id. at 48-49.) Judge Price heard and granted this motion in August. (Id. at 4.) In October, he denied the motion to withdraw the guilty plea and for new trial.
Direct Criminal Appeal. Twenty days after his motion to withdraw guilty plea was denied, Petitioner filed a motion for leave to file a late notice of appeal. (Id. at 59-60.) The following month, in November, Petitioner filed a motion for additional time to file a late notice of appeal. (Id. at 80.) The Missouri Court of Appeals for the Southern District granted his motion and permitted him leave to appeal the judgment. (Id. at 82.) Petitioner, proceeding pro se, did. (Id. at 84.)
Petitioner argued on appeal that (1) the trial court acted in excess of its jurisdiction because Count I of the amended information cited a repealed statute and (2) his plea violated due process and equal protection because (a) there was no factual basis for either charge, (b) he pled guilty to a repealed statute and there was substantial evidence he was actually innocent, (c) the plea agreement was broken and was induced by misrepresentation, mistake, misapprehension, and false hopes, and (d) the plea was not intelligently entered because he was not informed that he could not have acted knowingly if he did not remember firing the gun. (Resp. Ex. D at 17-18, ECF No. 9.)
In August 2003, the appellate court affirmed the judgment and sentence. (Resp. Ex. G, ECF No. 9.) The court's mandate was later recalled; the opinion was withdrawn; and the case was remanded to the trial court for appointment of counsel. See State v. Phillips, No. SD25243 (Mo.Ct.App. Nov. 23, 2005).
Now represented by counsel, Petitioner argued on appeal that the plea court erred in (1) not dismissing the charges because the second degree murder charge "was insufficient in that it did not include the mental states of either knowingly caus[ing] the death of another person' or acting with the purpose of causing serious physical injury to another person' as set out in Mo.Rev.Stat. § 565.021.1, thereby depriving [Petitioner] of his due process rights"; (2) failing to reject his guilty pea because he had not admitted facts establishing the necessary mental state for second degree murder; and (3) denying his motion to withdraw guilty plea because his plea was not intelligently entered in that he was misinformed about the mental state necessary for second degree murder. (Resp. Ex. N at 9-12, ECF No. 45.) (First alteration in original.)
Again, the appellate court affirmed Petitioner's judgment and sentence. State v. Phillips , 204 S.W.3d 729 (Mo.Ct.App. 2006). Addressing Petitioner's first point, the court found, in relevant part,
The information alleged the date and place of the offense. It stated the manner in which [Petitioner] caused the death of the victim - "by shooting him." It further alleged that [Petitioner] did the actions with which he was charged "intentionally, premeditatedly, with malice aforethought." It did not state that he did so "knowingly." This court does not perceive that one could act "intentionally" and "premeditatedly" without acting knowingly. The information did not fail, by any reasonable construction, to charge the offense to which [Petitioner] pleaded guilty simply because the word "knowingly" did not appear in the specification of the charge of murder in the second degree.
There is no showing that its absence impacted the preparation of any defense [Petitioner] might have wished to assert, or that it would it have prevented him from asserting double jeopardy had he chosen to go to trial and had he been acquitted.
[T]he only reasonable construction of the information in this case leads to the inescapable conclusion that [Petitioner] was charged with murder in the second degree, the offense of which he was convicted.
Because the language used in the information was compatible with an earlier statute that defined murder in the second degree, the 1978 statutes, [Petitioner] complains that he "was charged under a statute that no longer exists." The information filed in [Petitioner's] case explicitly identified the statute that he was charged with having violated as "Section 565.021, R.S.Mo., " and states the date of the offense as "the 8th day of October, 2000." [Petitioner] was charged with the offense of murder in the second degree as codified at § 565.021.
Id. at 731-32. Petitioner's second and third points were rejected on the grounds that neither was cognizable on direct appeal. Id . at 732.
Post-Conviction Proceedings. The day after Petitioner first requested leave to file a late notice of appeal, he filed a petition with the trial court for deoxyribose nucleic acid ("DNA") testing, pursuant to Mo.Rev.Stat. § 547.035. (Resp. Ex. C at 6-13.) Petitioner argued that DNA testing of Limbaugh's shirt "and other evidence" would have established that Limbaugh was close enough to Petitioner to pose a threat of imminent danger and that he was partially facing Petitioner and was not, as the state misrepresented, "ambushed from the back." (Id. at 9.) The court denied the petition in November 2003, finding that (a) the requested testing would not prove any of the allegations in his petition; (b) the testing technology was available when Petitioner entered his guilty plea; (d) Petitioner and his trial counsel were aware of the evidence at issue when the plea was entered; (e) identity was not an issue in the case; (f) no reasonable probability existed that DNA testing would lead to exculpatory results; and (g) the files and records conclusively show that Petitioner is guilty of the offenses to which he pled guilty. (Resp. Ex. M at 100-02.)
Petitioner appealed. His appeal was denied. Phillips v. State , 178 S.W.3d 679 (Mo.Ct.App. 2005).
The appellate court having recalled its earlier mandate and issued a new one in November 2006, Petitioner was granted leave until February 2007 to file a post-conviction motion pursuant to Mo.S.Ct.R. 24.035. (Resp. Ex. S at 9-10.) Petitioner did so. (Id. at 12-19.) His motion was amended by appointed counsel and raised five grounds for relief. (Id. at 20-34.) The first four grounds allege that Petitioner was denied the effective assistance of counsel when Edmundson (1) affirmatively misled Petitioner about the sentence by telling him he would only have to serve three years because of his age and medical conditions; (2) misinformed him of the terms of the plea offer by not telling him that "standing silent" did not mean that the prosecutor would say nothing at the sentencing hearing and meant only that the prosecutor would not recommend a particular sentence; (3) failed to conduct a reasonable investigation,  leaving him no choice but to plead guilty; and (4) failed to advise him of the elements of second degree murder, elements which Petitioner did not meet because he could not remember pulling the trigger and did not knowingly act to cause Limbaugh serious ...