Steven L. Toney v. James A. Gammon

Court Case Details
Court Case Opinion


No. 94-4030

Steven L. Toney,






Appeal from the United States


District Court for the Eastern

James A. Gammon; Jeremiah (Jay)


District of Missouri.

W. Nixon,





Submitted: September 14, 1995

Filed: March 29, 1996


Before BOWMAN, ROSS and BEAM, Circuit Judges.


ROSS, Circuit Judge.

Steven L. Toney appeals from the district court's judgment denying

his petition for writ of habeas corpus. We affirm in part and reverse in



Toney was convicted of the rape and sodomy of Kelly Eve Morris.

Morris testified that on September 30, 1982, she arrived at her apartment

complex about 3:00 a.m. and noticed a man on the stair landing. She

testified that when she reached her apartment door she was grabbed from

behind by a man who covered her mouth and nose with his hand and held a

knife blade to her throat. The man dragged her down the stairs and outside

to a wooded area behind the

apartment building. She stated that she was able to see the man's face

when they paused at a well-lit corner of the building. She was then

sodomized and raped. Once back at her apartment, Morris called the police

and later gave a description of her assailant as a Negro male, 25 to 30,

5'8" to 5'10", stocky, muscular build, dark complexion, wearing a white T-

shirt, blue jeans and leather gloves.

On October 5, 1982, Morris viewed over sixty photographs of possible

suspects but was unable to identify any of them as her assailant. On

October 8, 1982, she was shown four photographs and from these identified

one of them, a photograph of Toney, as the man who had assaulted her.

During the trial, Lee Adams, an attendant at a gas station near the scene

of the crime, recalled that at about 3:30 a.m. on the night of the assault,

a man approached the pay booth of the gas station on foot. Adams gave a

description to a police officer shortly afterward, stating that he was a

Negro male, 22 to 30, 5'8" to 5'10", stocky build, bad, gaped teeth, short

hair, a light mustache, wearing a white T-shirt, blue jeans and leather

gloves. On October 14, 1982, two days after Toney was arrested, Adams was

shown four photographs and from these identified Toney as the man he had

seen at the gas station on the night of the crime. Toney has steadfastly

maintained his innocence throughout his trial and postconviction

proceedings. Toney points out that the descriptions given by both the

victim and the gas attendant, while similar to each other, do not describe

him with any accuracy. Toney was, in fact, 35 years old, 6' tall, 165

pounds, light-complected, pockmarked face, good teeth and a full beard and


Following his conviction, Toney filed a motion for a new trial and

received an evidentiary hearing on claims raised in that motion. The

motion was denied and Toney was sentenced as a persistent and dangerous

offender to a term of life imprisonment on each of the two counts, to run

consecutively. The Missouri Court of Appeals affirmed Toney's conviction

and sentence. State v.


Toney, 680 S.W.2d 268 (Mo. Ct. App. 1984). Toney then sought

postconviction relief under Missouri Supreme Court Rule 27.26, claiming

ineffective assistance of counsel. The motion was initially denied without

an evidentiary hearing. The Missouri Court of Appeals, however, reversed

and remanded the case to the motion court for more detailed findings of

fact and conclusions of law. Toney v. State, 730 S.W.2d 295 (Mo. Ct. App.

1987). Toney's Rule 27.26 motion was again denied without an evidentiary

hearing. Toney v. State, 770 S.W.2d 411 (Mo. Ct. App. 1989).

Toney then filed a petition for habeas corpus in the United States

District Court for the Eastern District of Missouri raising twenty-one

grounds for reversal. The matter was referred to a magistrate judge who

recommended denial of Toney's petition, as well as denial of his motion for

appointment of counsel, denial of his motion for a DNA blood test and for

scientific inspection of the physical evidence the state introduced at

trial, and the denial of his motion for copies of deposition transcripts.

Following consideration of Toney's pro se objections and in light of two

recent Missouri cases, on July 15, 1991, the district court recommitted the

petition to the magistrate judge for further consideration of Toney's third

petition claim, specifically that the trial judge mistakenly imposed

consecutive life sentences. The district court also granted Toney's

request to file a motion to compel analysis of the blood sample and

referred the motion to compel to the magistrate judge for consideration.

On March 30, 1992, over eight months after the case was resubmitted, the

magistrate judge denied Toney's motion to compel and his request for an

evidentiary hearing without prejudice in a two-sentence order.

On September 4, 1992, the district court entered an order accepting

the magistrate judge's denial of the petition only as to eleven of Toney's

twenty-one claims, and recommitted the ten remaining claims, as well as

various pending motions, to the


magistrate judge for further consideration, holding that the present record

supported sustaining Toney's motion for appointment of counsel and required

further consideration of several issues pertaining to the analysis of

evidence and blood samples, as well as the appropriateness of holding an

evidentiary hearing to allow Toney a full opportunity to present his


On March 24, 1994, over a year and a half after the remaining claims

were resubmitted for further consideration, the magistrate judge

recommended denial of Toney's remaining habeas claims and denial of his

renewed motion to permit DNA testing. On October 15, 1994, the district

court adopted the magistrate judge's recommendations and dismissed the

petition with prejudice.


On appeal, Toney first argues the district court erred in denying his

habeas petition without first conducting an evidentiary hearing. He claims

he was denied a full and fair opportunity to present his claims where the

state court and the district court denied his substantial claims of

ineffective assistance and constitutional claims without an evidentiary



In order to prove such ineffective assistance of counsel, Toney must

show that his attorney's performance was deficient and that such deficient

performance prejudiced his defense. Sidebottom v. Delo, 46 F.3d 744, 752

(8th Cir.), cert. denied, 116 S. Ct. 144


Toney generally argued he is entitled to an evidentiary

hearing on other issues raised in his habeas petition; however,
he failed to specify in his brief on appeal why these grounds
entitled him to a hearing. It is insufficient to incorporate by
reference various arguments made to the district court.
Sidebottom v. Delo, 46 F.3d 744, 750 n.3 (8th Cir.), cert.
denied, 116 S. Ct. 144 (1995); see 8th Cir. R. 28A(j). He has,
therefore, waived any right to have these arguments considered on
appeal. Sidebottom, 46 F.3d at 750.


(1995). Toney claims his trial counsel was ineffective in failing to: (1)

highlight the lack of evidence linking Toney to the crime; (2) have the

semen of the assailant blood-typed, which he claims would have excluded him

as a suspect; (3) cross-examine the state's forensic expert on whether her

testing protocol was generally accepted in the scientific community; and

(4) insure that a probable cause hearing was held by the court. Toney

claims his trial counsel was grossly ineffective in failing to develop a

defense of mistaken identity, particularly in light of Toney's strong

protestations of innocence, his demand for a blood test in order to

exonerate himself, and the striking dissimilarity between the description

of the assailant given by the victim and the gas attendant and Toney's

physical characteristics. Toney contends that but for these errors, a

"reasonable probability" existed that the jury would not have found him

guilty beyond a reasonable doubt. See id.

In remanding the case to the magistrate judge, the district court

stated that Toney's remaining claims appeared to raise substantial grounds:

The present record . . . supports the granting of petitioner's
motion for appointment of counsel and the denial without
prejudice of the other two March, 1990, motions [motion for
leave to compel analysis of victim's blood sample and request
for an evidentiary hearing]. Various claims remain before the
Court as the result of this and earlier orders, and several
pertaining to the analysis of evidence and blood samples
may need to be addressed more fully. While petitioner has
shown an ability to present his positions, the issues still to
be considered by the Court are relatively unusual and it is not
clear that the state court record alone will resolve the
pending issues.

* * *

[T]he magistrate judge may deem it appropriate to grant
[petitioner's] requests, at least in part, so as to provide
petitioner with a full opportunity to present his


claims, particularly in light of the fact petitioner did not
have an evidentiary hearing in his state postconviction

(Emphasis added). Notwithstanding the district court's expressed concerns,

the magistrate judge recommended denial of the petition and motion for DNA

testing "without further proceedings."

The State claims Toney was not entitled to an evidentiary hearing in

federal court because he received an evidentiary hearing in state court on

his motion for a new trial and because the record itself was sufficient to

clearly indicate his grounds were all without merit. Generally, a habeas

petitioner is entitled to an evidentiary hearing in federal court if the

petition "alleges sufficient grounds for release, relevant facts are in

dispute, and the state courts did not hold a full and fair evidentiary

hearing." Wilson v. Kemna, 12 F.3d 145, 146 (8th Cir. 1994) (citations

omitted). However, a petition may be summarily dismissed if the record

clearly indicates that the petitioner's claims are either barred from

review or without merit. Id.

The record in the present case does not conclusively establish that

Toney's claims are either barred from review or without merit. Toney has

raised substantial claims that his counsel provided ineffective assistance

by failing to exhaustively pursue the issue of mistaken identity and by

failing to obtain the requested blood tests. Compare Moore v. State, 827

S.W.2d 213, 214-16 (Mo. 1992) (under the circumstances of this case, trial

counsel's failure to obtain requested blood tests fell below reasonable and

customary standards; there was a reasonable probability of a different

outcome had such test results been obtained). The record shows that Toney

did not receive an evidentiary hearing in his state postconviction

proceedings and, in light of that fact, the district court initially

advised the magistrate judge that granting Toney's request for a hearing

may be appropriate in order to ensure that he


has a full and fair opportunity to present his claims. We reject the

State's argument that the hearing held on Toney's motion for a new trial

provided Toney with the requisite opportunity to submit his postconviction

arguments. We conclude the district court abused its discretion in failing

to ensure that Toney was accorded an evidentiary hearing on his ineffective

assistance of counsel claims.


Toney raises several other claims challenging the district court's

refusal to grant his petition. He claims his constitutional rights were

violated when the jury was allowed to view mugshots used in two

photographic lineups, each of which contained one mugshot of Toney. Toney

claims the police data appearing on the photographs was inadequately

concealed and, consequently, the jury had the opportunity to see

information which linked him to past criminal activity in violation of his

Fifth Amendment rights.

The magistrate judge rejected Toney's claim for two reasons. First,

Toney never presented the federal constitutional aspects of his claim to

the Missouri state courts, thus creating a procedural bar to review.

Second, the Missouri Court of Appeals never reached the merits of his claim

under state or federal law because Toney failed to provide that court with

an adequate record on which to review his claims. It is well established

that attacking an alleged trial error as a violation of state law in state

court proceedings does not preserve a federal constitutional law claim

based on the same alleged trial error for federal habeas corpus review.

Picard v. Connor, 404 U.S. 270, 278 (1971). Toney makes no attempt to

demonstrate either cause or prejudice for failing to raise the

constitutional dimensions of his claim relating to the mugshots in state

court. Therefore, we conclude this claim is procedurally barred.



Relying on Wardius v. Oregon, 412 U.S. 470 (1973), Toney next argues

his due process rights were violated when Larry Freeman, a state

investigator, was allowed to testify in rebuttal to Toney's alibi witness,

although Mr. Freeman had not been named as a rebuttal witness until the

third day of trial. In Wardius, the Supreme Court held that if a defendant

is required to reveal witnesses under a discovery rule, the Due Process

Clause requires reciprocal discovery on the part of the prosecution. Id.

at 475.

In the present case, Mamie Toney stated in her alibi testimony that

her grandson could not have committed the crime because she specifically

remembered that he was asleep at her house on the night of the assault.

Mr. Freeman, the rebuttal witness, did not call this alibi testimony into

question. Instead, his entire testimony consisted of his recollection

that, several months after the crime and shortly before the trial, he had

interviewed Mrs. Toney on a Tuesday, while Mrs. Toney had believed it was

a Wednesday. Mr. Freeman's testimony had the very limited effect of

possibly calling into question Mrs. Toney's ability to remember certain

dates. Mr. Freeman in no way challenged Mrs. Toney's alibi statement, nor

the basis for Mrs. Toney's precise recollection of Toney's whereabouts at

the time of the crime. In fact, Mrs. Toney's own testimony revealed that

she was not absolutely certain of the date of Mr. Freeman's visit.

We reject Toney's argument that Wardius requires the conclusion that

admission of a surprise rebuttal witness testimony, in all instances,

amounts to a violation of fundamental fairness rising to the level of an

infringement of due process. Even if we were to assume that the

introduction of Mr. Freeman's testimony violated Toney's due process

rights, we conclude the error was harmless beyond a reasonable doubt. See

Mauricio v. Duckworth, 840 F.2d 454, 459 (7th Cir.), cert. denied, 488 U.S.

869 (1988). The


fact that the prosecution had the opportunity to interview Mr. Freeman

prior to his testimony, coupled with the extremely limited value of the so-

called rebuttal testimony, we cannot say there was a "reasonable

possibility that the [errors] complained of might have contributed to the

conviction." Id. There was no need for an evidentiary hearing on this

issue because the record clearly establishes that the claim is without



Toney also contends the trial court violated his due process right

to a fair trial by improperly granting the state's motion in limine to

exclude evidence, including a newspaper article and a composite sketch, in

support of the theory that Arnett Smith, and not Toney, had raped the

victim. The Missouri Court of Appeals declined to address the merits of

this claim, concluding that the issue had not been raised before the trial

court. State v. Toney, 680 S.W.2d 268, 277 (Mo. Ct. App. 1984). Instead,

the state appellate court, reviewing only for plain error, found no

manifest injustice or miscarriage of justice. Id. The court's analysis

went no further. As we have recently reaffirmed, a properly limited plain

error review by a state court does not cure procedural default. See

Bannister v. Armontrout, 4 F.3d 1434, 1445 n.16 (8th Cir. 1993), cert.

denied, 115 S. Ct. 418 (1994) (citing Hayes v. Lockhart, 766 F.2d 1247,

1252 (8th Cir.), cert. denied, 474 U.S. 922 (1985)). This claim is

procedurally barred as neither cause nor prejudice has been demonstrated.


Toney next argues the district court erred by applying the "clear and

convincing" standard in Sawyer v. Whitley, 112 S. Ct. 2514, 2525 (1992),

rather than the more lenient "more likely than not" standard of Schlup v.

Delo, 115 S. Ct. 851, 867 (1995) (applying standard of proof established

by Murray v. Carrier, 477


U.S. 478, 496 (1986)), to any possible miscarriage of justice claims

arising from the district court's conclusion that certain claims were

procedurally barred. Because Toney did not argue that actual innocence or

miscarriage of justice excused the default of any of these claims, a

reconciliation of this issue was not necessary to the determination of this

case by the district court and we therefore do not consider any possible

error in the district court's discussion.


Toney next contends that he was erroneously sentenced to two

consecutive life sentences in violation of his due process rights. At

sentencing, the judge imposed a term of life imprisonment on each of the

two counts for which Toney was convicted, rape and sodomy. The court

stated that the applicable statute, Mo. Rev. Stat. § 558.026.1, "provides

the sentence to be consecutive and mandatory, not even optional." Although

the state appellate court upheld this ruling, State v. Toney, 680 S.W.2d

at 273-74, the Missouri Supreme Court later effectively overruled this

conclusion and held that § 558.026.1 allows the trial court discretion in

deciding whether to impose sentences concurrently or consecutively where

the relevant counts of conviction are crimes of a sexual nature, committed

at the same time. See Williams v. State, 800 S.W.2d 739, 740 (Mo. 1990);

State v. Burgess, 800 S.W.2d 743, 744 (Mo. 1990). Toney claims in his

petition that he is entitled to have his case remanded to the state court

for a discretionary determination of whether his sentence should run

concurrently or consecutively. The magistrate judge concluded, as adopted

by the district court, that although the trial judge may have misapplied

the state sentencing procedures, this claim is not cognizable in a § 2254

proceeding and should be dismissed. We disagree.

While we recognize that "it is not the province of a federal habeas

court to reexamine state-court determinations on state-law


questions," Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), it is important

to note the particular constitutional difficulties encountered with

application of state sentencing statutes. In Hicks v. Oklahoma, 447 U.S.

343, 346 (1980), the Supreme Court held that when a state creates a

"substantial and legitimate [sentencing] expectation" an "arbitrary

deprivation" of such entitlement may create an independent federal

constitutional violation.

Whether Missouri state court sentencing judges have the discretion

to consider consecutive or concurrent sentences is a question of state law

which only the state can decide. Here, the Missouri sentencing statutes

are clear. The state legislature, as interpreted by the Missouri Supreme

Court, conclusively established that under § 558.026.1, a defendant will

be sentenced to either consecutive or concurrent sentences at the

discretion of the sentencing court. See Williams v. State, 800 S.W.2d at

740; State v. Burgess, 800 S.W.2d at 744. Toney has a constitutionally

protected liberty interest in the sentence resulting from the exercise of

this discretion, and that liberty interest is one that the Fourteenth

Amendment preserves against arbitrary deprivation by the State. In this

case, the sentencing judge, erroneously believing he had no discretion to

do otherwise, imposed two consecutive life sentences. Such an arbitrary

disregard of Toney's right to liberty is a denial of due process of law.

The case is remanded to the district court with directions that, after the

hearing we have heretofore required is concluded and made part of the

court's final order, the district court shall remand to the state court for

a discretionary determination of whether Toney's sentence should run

concurrently or consecutively.


Finally, Toney argues that the district court erred in adopting the

magistrate judge's denial of a motion to now conduct


DNA and other scientific testing of various exhibits introduced at Toney's

state court trial. Such testing was not available at the time of the

trial. Toney claims that he has not even been able to obtain the samples

from the State in order to perform any kind of testing -- blood-typing or

DNA fingerprinting. He claims that such testing may well exonerate him of

the crime. The State has acknowledged that the exhibits from Toney's state

criminal trial remain in the custody of St. Louis County authorities and

are available for testing if ordered by the court. However, the State has

refused this court's request to voluntarily make such exhibits available

to Toney's counsel.

The magistrate judge's decision, as adopted by the district court,

concluded that Toney was not entitled to access to the state exhibits for

the purpose of DNA testing because such testing had no relationship to any

claim before the court and for the public policy reason that granting the

motion "would open the flood gates for DNA testing . . . in every rape case

where the individual is still serving time."

Rule 6(a) of the Rules Governing Section 2254 Cases expressly

provides for discovery in habeas proceedings if the petitioner shows "good


cause" for discovery. The determination of whether to grant leave is

within the discretion of the district court. According to the Commentary

to Rule 6:

[W]here specific allegations before the court show reason to
believe that the petitioner may, if the facts are fully
developed, be able to demonstrate that he is confined illegally
and is therefore entitled to relief,


Rule 6(a) provides:

A party shall be entitled to invoke the processes of
discovery available under the Federal Rules of Civil
Procedure if, and to the extent that, the judge in the
exercise of his discretion and for good cause shown
grants leave to do so, but not otherwise.


it is the duty of the court to provide the necessary facilities and
procedures for an adequate inquiry.

Although it is generally within a district court's discretion to grant or

deny discovery requests under Rule 6, a court's denial of discovery is an

abuse of discretion if discovery is "indispensable to a fair, rounded,

development of the material facts." East v. Scott, 55 F.3d 996, 1001 (5th

Cir. 1995) (quoting Townsend v. Sain, 372 U.S. 293, 322 (1963)).

Given the nature of Toney's allegations, we conclude that Toney has

shown good cause for discovery under Rule 6. Toney has claimed throughout

his postconviction proceedings that he is innocent of the crime and that

his counsel was ineffective for failing to pursue his claim of mistaken

identity or to obtain state's evidence so as to conduct scientific

examinations. In order to prove the prejudice prong of his ineffective

assistance claim, Toney is entitled to have access to this evidence through

discovery. The district court abused its discretion in denying his

discovery requests.


For the reasons stated above, we reverse the district court's denial

of Toney's motion for an evidentiary hearing and request for discovery.

We also reverse the district court's conclusion with respect to Toney's

sentencing. The remaining bases of appeal are affirmed. Accordingly, the

case is affirmed in part, reversed in part and remanded to the district

court for further proceedings consistent with this opinion.


A true copy.




Referenced Cases