Opinion
No. SC 87440
February 1, 2006
JOHN WILLIAM SIMON, J.D., PH.D. MO #34535 St. Louis, Missouri, LEAD COUNSEL.
SPENCER FANE BRITT BROWNE, LLP Mark A. Thornhill MO #26326 Benjamin T. Clark MO #53115 Kansas City, Missouri, ATTORNEYS FOR PLAINTIFF.
COMES NOW the Plaintiff Michael Anthony Taylor ("Taylor"), by and through his undersigned counsel, and respectfully submits his emergency consolidated Answer, Motion to Quash and Appeal. On February 1, 2006, the Honorable Jay A. Daugherty, issued a "Judgment" denying Taylor's Petition to Vacate Judgment. See Ex. A (Judgment entered on Feb. 1, 2006).
Following Judge Daugherty's Judgment, the Missouri Supreme Court issued a show cause order. That order commanded Judge Daugherty to Show Cause why a writ of prohibition should not issue. Specifically, the Missouri Supreme Court indicated that Rule 74.06(d) could not be used to disturb a criminal judgment.
As a preliminary matter, the language of Rule 74.06(d) does expressly not limit its application to civil cases. Moreover, Taylor's Petition was not filed in a criminal case. Finally, regardless of Rule 74.06(d)'s reach, its protection is necessary here to protect the integrity of the Missouri judicial system.
For the reasons set forth below, Judge Daugherty's ruling is erroneous. Moreover, because Taylor is currently set for execution this evening, Taylor respectfully requests this Court reverse Judge Daugherty's ruling, and issue an Order temporarily enjoining his execution.
I. FACTUAL BACKGROUND
Because this Court is intimately familiar with the facts of this case, the following is not an exhaustive factual discussion. Instead, the following explains the relevant facts and applicable law relating to Taylor's Petition that Judge Daugherty denied on February 1, 2006.
On November 8, 2005, Taylor filed a Petition to Vacate Judgment before the Circuit Court of Jackson County, Missouri at Kansas City. See Ex. B (Petition to Vacate Judgment). The Petition requested the court to vacate its previous judgment in a case captioned Michael Anthony Taylor v. State of Missouri, No. CV94-019962. The basis for the relief requested was that the judgment was induced by extrinsic fraud, and should therefore be vacated under Mo. R. 74.06(d). In part, the Petition alleged the following facts:
1. On July 28, 1988, in a Circuit Court Case No. CR89-4934, the State charged Taylor with first-degree murder and other felonies.
2. Taylor was represented in that case by Leslie Delk and Martin McClain.
3. Pursuant to the advice of Delk and McClain, Taylor pled guilty on February 8, 1991.
4. As a result of that plea, Taylor was sentenced to death by the Honorable Alvin C. Randall on May 3, 1991.
5. Through other counsel, Taylor pursued an action in the Circuit Court, No. CV91-20562, for state post-conviction relief under Mo. S. Ct. R. 24.035.
6. On July 1, 1992, the Circuit Court (the Honorable Robert H. Dierker, Special Judge) denied relief under Rule 24.035.
7. Taylor filed a consolidated appeal from the Circuit Court's sentence of death and its denial of post-conviction relief, which was the Missouri Supreme Court's Docket No. 74220.
8. In the latter appeal, the Missouri Supreme Court did not specifically address the plaintiff's allegations of ineffective assistance of counsel. On July 29, 1993, however, it issued a two-fragment order vacating the judgment and remanding the cause for a new penalty hearing, imposition of sentence, and entry of a new judgment.
9. After the remand from the Missouri Supreme Court vacating the judgment, the State was represented by Assistant Prosecuting Attorney Jeff Stigall.
10. At a pretrial conference on January 6, 1994, Judge Coburn denied Taylor's motions for recusal and to withdraw his guilty plea. (Sentencing Transcript After Remand, No. CR89-4934, at 12.) In it, the State of Missouri agreed in Taylor's presence (Sentencing Transcript After Remand at 2 7) that it would "not object to any procedural issue" from the previous proceedings. (Id. at 4-6.)
11. Taylor's amended motion for state post-conviction relief incorporated the grounds of the first 24.035 motion, as well as those of the second pro se motion. These included (1) the Taylor's pro se request for relief because he was denied a jury once Judge Randall had become unavailable, (2) the involuntariness of the plea because the plaintiff was not informed of the elements of the offense with which he was charged, and (3) ineffective assistance of counsel by Delk and McClain. (Amended Motion to Vacate Sentence Judgment, No. CV94-19962, at 2-21; Transcript of evidentiary hearing in State v. Taylor, No. CV94-19962, at 14.)
12. At the PCR hearing, one of the attorneys who represented Taylor after remand, C. John Pleban, volunteered the opinion that Taylor did not understand what was going on at the guilty-plea proceeding. The State of Missouri objected, and the Circuit Court sustained the objection: "the scope of this hearing is not the previous plea, but rather the second sentencing procedure." (Transcript of Evidentiary Hearing in State v. Taylor, No. CV94-19962, at 160-61.)
13. On June 19, 1995, the Circuit Court (the Honorable Edith L. Messina, Circuit Judge) entered its order denying relief. Its written order addressed the propriety of exhausting, presenting, or preserving claims about the guilty plea and first sentencing that previous counsel had timely raised in the first PCR action, holding that they were "not properly before this court for reconsideration." (Findings of Fact and Conclusions of Law, No. CV94-19962, at 19-20.)
14. Taylor appealed. In Taylor's opening brief before the Missouri Supreme Court, Taylor's appointed counsel argued that the Circuit Court had erred in ignoring the effect on the second death-penalty hearing of errors and omissions by the plaintiff's counsel in the first death-penalty hearing (Delk and McClain), such as advising witnesses not to testify to the abuse and other negative things in the Taylor's past but to present a falsely positive image of him. (Appellant's Opening Brief in State v. Taylor, No. 77365, Missouri Supreme Court, at 88.)
15. In the direct appeal, the State of Missouri was represented by the Office of the Attorney General of the State of Missouri, and specifically by Assistant Attorneys General Becky Owenson Kilpatrick and Jill C. LaHue, of the Criminal Division of the Office of the Attorney General.
16. In its brief, the State of Missouri repeated its representation in the Circuit Court that Taylor's claims of ineffective assistance of guilty-plea and initial-sentencing counsel had been exhausted in the first PCR proceeding: "the claims with respect to appellant's counsel prior to this Court's remand were fully litigated and were precluded from consideration in appellant's post-conviction challenge to the resentencing proceeding." (Respondent's Brief in State v. Taylor, No. 77365, Missouri Supreme Court, at 76.) The State of Missouri also argued that any claims regarding Delk and McClain were "moot" because the Missouri Supreme Court had rewarded the first sentences, and were "successive" because he had already raised them in his first PCR action. Id.
17. After the Missouri Supreme Court affirmed the Circuit Court's sentence on remand and its denial of state post-conviction relief, Taylor filed a petition for a writ of habeas corpus before the United States District Court for the Western District of Missouri. Taylor v. Bowersox, No. 97-4033-CV-W-2 (W.D. Mo. July 10, 2000) (unpublished opinion),aff'd, 329 F.3d 963 (8th Cir. 2003), cert. denied, 541 U.S. 947 (2004).
18. In the latter action, the Assistant Attorney General handling the case for the state was Stephen David Hawke, also in the Criminal Division of that office.
19. When Taylor included these claims in his federal habeas corpus petition, the State of Missouri took exactly the opposite position from what it had taken in the state courts (and repeatedly before the Circuit Court), arguing that these claims were procedurally defaulted for the very reason that Taylor's counsel before the Circuit Court and before the Missouri Supreme Court did not litigate the claims of ineffective assistance of plea counsel when the Circuit Court had ruled, in response to the State of Missouri's objection, that they could not be litigated again.
20. By successfully objecting to introduction of testimony about Taylor's state of mind concerning the guilty plea, the State of Missouri caused the scope of the PCR evidentiary hearing to be narrower than it would have been if these claims had been considered.
21. Narrowing the PCR evidentiary hearing worked to the State's advantage by decreasing the mass of evidence it had to meet and the number of claims on which it was exposed to vacatur of the death sentence it had obtained in the previous two sentencing proceedings.
22. Narrowing the claims to those arising from the acts or omissions of second sentencing counsel went to the manner in which the judgment denying state post-conviction relief a second time was procured, in that it insulated the respondent's position from a critique of the underlying plea of guilty.
23. The State's successful objection to the presentation of testimony on claims which were litigated in the first PCR action and appeal, prevented Taylor from presenting his case or defense, because PCR counsel had included these claims in the amended motion, and but for the respondent's successful objection to testimony in support of them, she would have presented evidence in support of these claims and advanced them on appeal if the Circuit Court had denied relief on them.
24. The question whether the claims of ineffective assistance of counsel which Taylor's counsel had presented in the first PCR action and the first consolidated appeal went to extrinsic collateral acts or matters not before the Circuit Court in the suit in which judgment was granted, which this Court limited to acts or omissions of second sentencing counsel.
25. The State of Missouri's representations as aforesaid induced Taylor's second PCR counsel not to continue to attempt to present evidence on claims relating to plea counsel, which she had included in the amended motion.
26. The State of Missouri's counsel before the Circuit Court knew or in the exercise of reasonable diligence should have known that the Office of the Attorney General would eventually renege on the representations the state's local counsel initially made to the Circuit Court that the claims about the denial of jury trial, the involuntariness of the guilty plea, and the ineffective assistance of plea and first-sentencing counsel had been fully litigated in the first PCR action and consolidated appeal, and could not come before the Circuit Court again.
27. Taylor was free from fault or negligence in the matter, having (through appointed counsel) presented these claims in his amended motion and having begun to adduce testimony on them when the respondent objected and the Circuit Court sustained the objection.
28. Respondent adhered to its ostensible position through the second consolidated appeal, as demonstrated by the quotations from its brief contained in this petition.
29. Although the respondent was represented by different attorneys in the Circuit Court, in the Missouri Supreme Court, and by yet another in the federal courts, it was the real party in interest in the underlying criminal litigation, the underlying post-conviction relief litigation, the consolidated appeal, and the federal habeas corpus proceedings.
30. The State of Missouri's conduct caused Taylor to lose his federal-court remedy for his federal constitutional violations in the guilty-plea process.
There was a considerable delay between the filing of the Petition on November 8, 2005, and Judge Daugherty's judgment on February 1, 2006. Although there are many reasons for this delay, none were caused by Taylor. First, on the day that the Petition was filed, counsel for Taylor, Mark A. Thornhill, telephoned Steven D. Hawke at the State of Missouri's Office of Attorney General. Mr. Thornhill inquired whether the State would accept service of the Petition. Mr. Thornhill also inquired whether the State would accept service in a letter dated December 2, 2005.See Ex. B. At no time did Mr. Hawke, or any other individual at the Office of Attorney General agree to accept service. Therefore, the Defendants were not served until December 15 and December 16, 2005.
In addition, two Circuit Court judges issued recusal orders preventing them from hearing Taylor's Petition. Consequently, the case was transferred on three different occasions. Therefore, the case was not properly before a Circuit Court judge until January 30, 2006. Because Taylor's execution was imminent, Judge Daugherty agreed to conduct a hearing on the Petition at 5:00 p.m. on January 31, 2006.
At the hearing, Taylor's counsel requested that Judge Daugherty stay the date of Taylor's execution until a more lengthy evidentiary hearing could be conducted. In support of the Petition, Taylor's counsel reiterated the factual background described above. He also presented the sworn testimony of Elizabeth Unger Carlyle ("Carlyle"). Carlyle testified that she represented Taylor in his post-conviction proceeding in Jackson County Circuit Court, and in his consolidated appeal before the Missouri Supreme Court. She testified that she relied on the representations of the Office of the Jackson County Prosecuting Attorney and Judge Messina that any claims of ineffective assistance of counsel by plea counsel were not properly before the Circuit Court of Jackson County or before the Missouri Supreme Court. Based on those representations, Carlyle testified that she did not raise an ineffective assistance of counsel claim before those courts. She further testified that Taylor was prejudiced as a result of those representations.
At the hearing, the State did not present rebuttal evidence. Instead, the State briefly cross-examined Carlyle. Following Taylor's evidence, Judge Daugherty stated that he would issue a ruling the following morning. On the morning of February 1, 2006, Judge Daugherty issued a one-sentence Judgment. That Judgment simply stated that "after considering the argument of counsel and all of the credible evidence, the Petition to Vacate Judgment is DENIED."
II. THE TRIAL COURT'S RULING IS ERRONEOUS AS A MATTER OF LAW
Because Judge Daugherty's Judgment is cursory, it is impossible to determine his basis for denying relief. Nonetheless, the trial court should have, at the very least, stayed the execution of Taylor pending a more intensive evidentiary hearing. The following explains why the trial court erred by refusing to stay Taylor's execution.
A. TAYLOR HAS MADE A PRIMA FACIE SHOWING UNDER 74.06(d)
Rule 74.06(d) provides that a trial court has jurisdiction to "entertain an independent action to relieve a party from judgment or order or to set aside a judgment for fraud upon the Court." The rule allows a party to bring an independent cause of action to set aside a judgment if it was procured by extrinsic fraud.State of Missouri ex rel. v. Hill, 53 S.W.3d 137, (Mo.Ct.App. 2001). Extrinsic fraud is "fraud that induced a party to default or to consent to judgment against him." Thompson v. Columbia Mut. Ins. Co., 820 S.W.2d 626, 631 (Mo.Ct.App. 1991); see also Sanders v. Insurance Co. of N. Am., 904 S.W.2d 397, 401 (Mo.Ct.App. 1995) (recognizing that "Missouri courts have had some difficulty in defining extrinsic fraud"). Extrinsic fraud has also been defined as fraud that prevented a party "from a trial or from the full presentation of his case. . . ." See Sanders, 904 S.W.2d at 401. In contrast, intrinsic fraud is conduct such as "knowing use of perjured testimony or otherwise fabricated evidence." Id.
To set aside a judgment on the basis of extrinsic fraud, the moving party must establish that the fraud
was practiced in the very act of obtaining the judgment; that the fraud went to the manner in which the judgment was procured rather than Operating upon matters pertaining to the judgment itself; that the fraud prevented the unsuccessful party from presenting his case or defense; or that the fraud otherwise went to extrinsic, collateral acts or matters not before the court for examination or determination in the suit or proceeding in which the judgment was rendered.
Orrock v. Crouse Realtors, Inc., 813 S.W.2d 929, 931-32 (Mo.Ct.App. 1991).
As set forth in Taylor's Petition, and as explained in the abbreviated hearing before Judge Daugherty, the State of Missouri committed extrinsic fraud. That fraud, perpetuated by the State of Missouri, consisted of the State switching positions during the state court post conviction relief proceedings and the federal habeas proceedings. Specifically, the State first argued before Judge Messina that the ineffective assistance of counsel issues were implicitly decided by the Missouri Supreme Court in its Order that vacated the first sentence issued to Taylor. As a direct result of the State's representation (and Judge Messina's ruling) Carlyle did not raise an effective assistance defense. Instead, she presumed that the defense could be raised to the federal district court in a petition for habeas corpus relief.
At the district court, however, the State completely changed its position. It argued that Caryle was required to raise the ineffective assistance claim on direct appeal. According to the State, her failure to do so barred the ineffective assistance claim from habeas review.
As stated above, extrinsic fraud is conduct that prevents a party from "the full presentation of his case. . . ." Sanders, 904 S.W.2d at 401. Under that standard, Taylor is entitled to relief under 74.06(d). Because the State fraudulently changed positions on the ineffective assistance claim, Taylor was prevented from fully presenting that defense. Id.
Importantly, the Eighth Circuit Court of Appeals recognized that State's deceitful acts. In an earlier opinion, that Court stated that the "[s]tate's arguments appear to be disingenuous." Taylor v. Bowersox, 329 F.3d 963, 970 (8th Cir. 2003). Indeed, at the hearing before Judge Daugherty, Carlyle testified that she did not raise the ineffective assistance claim because she relied on the State's representations. She further testified that Taylor suffered prejudice because the ineffective assistance claim was never presented. Because Taylor presented a colorable claim for relief under Rule 74.06(d), Judge Daugherty should have granted a stay of execution pending a more extensive evidentiary hearing.
WHEREFORE, for all these reasons, Michael A. Taylor respectfully requests this Court to stay his execution until an evidentiary hearing may be conducted on his request for relief under Rule 74.06(d).
Dear Mr. Thornhill:
Please be advised that Appellant's/Respondent's consolidated answer and motion to quash preliminary writ in prohibition and appeal from the Circuit Court of Jackson County's denial of Plaintiff's petition to vacate was filed on this date in the above-entitled cause. The Court entered the following order today:
"Appellant's motion to quash preliminary writ in prohibition overruled. All relief denied."
Very truly yours,
THOMAS F. SIMON
Cynthia L. Turley Deputy Clerk, Court en Banc