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Storey v. Roper

April 28, 2010


Appeal from the United States District Court for the Eastern District of Missouri.

The opinion of the court was delivered by: Beam, Circuit Judge.

Submitted: November 18, 2009

Before MELLOY, BEAM, and GRUENDER, Circuit Judges.

Walter Timothy Storey appeals the district court's*fn1 denial of his 28 U.S.C. § 2254 petition for habeas corpus in this death penalty case. Five issues have been certified for appeal--two claims regarding victim impact testimony; one claim about the pecuniary gain statutory aggravator; and two claims of ineffective assistance of counsel. We affirm the denial of habeas corpus relief.


Jill Frey, a special education teacher in St. Charles, Missouri, was murdered in her apartment in St. Charles in February 1990. Storey, who lived with his mother, was her across-the-hall neighbor. On the day of the murder, a Friday, he had received by mail a divorce petition from his estranged wife. Presumably in response, Storey drank alcohol heavily, and when he ran out of alcohol, he decided to rob Frey in order to purchase more alcohol. Late Friday night or early Saturday morning, he took a knife from his apartment, climbed Frey's balcony, and entered an unlocked sliding glass door. After brutally murdering Frey by beating and inflicting multiple slash and stab wounds, Storey stole Frey's car keys, purse and car. On Sunday, Storey returned to the scene to cover up the murder, wiping down the apartment, scrubbing Frey's fingernails, throwing away clothing and disposing of other incriminating evidence. Co-workers discovered Frey's body on Monday, when she did not show up at school for work. After giving several different stories to the police, Storey admitted most of the above details, but contended that he only remembered struggling with Frey, not killing her. He proceeded to trial, advancing the theory that a large man forced Storey into Frey's apartment and killed Frey because the alleged assailant thought Frey was Storey's mother, all at the behest of Storey's estranged wife's father.

The jury rejected Storey's theory and convicted him of first-degree murder, armed criminal action, second-degree burglary, and tampering with evidence. Following a penalty-phase trial, the jury recommended the death penalty, which the trial court imposed. In 1995, the Missouri Supreme Court affirmed the convictions, but reversed and remanded the death sentence after finding that Storey was denied his constitutional right to effective assistance of counsel for failing to object to improper prosecutorial arguments during the penalty phase. State v. Storey, 901 S.W.2d 886, 902-03 (Mo. 1995) (Storey I). In 1997, a second jury recommended a sentence of death, which the trial court adopted. The Missouri Supreme Court again reversed and remanded the sentence of death because the trial court failed to properly instruct the jury concerning Storey's constitutional right not to testify. State v. Storey, 986 S.W.2d 462, 464-66 (Mo. 1999) (Storey II). After a third penalty-phase trial in September 1999, the trial court again adopted the jury's recommendation that Storey be put to death, and the Missouri Supreme Court affirmed on March 6, 2001. State v. Storey, 40 S.W.3d 898 (Mo. 2001) (Storey III). Storey filed a petition for certiorari on July 20, 2001, which was denied on October 1, 2001. 534 U.S. 921 (2001).

On July 19, 2001, Storey filed a Rule 29.15 motion for post-conviction relief in Missouri state court, which was denied on March 18, 2004. Storey appealed, and the Missouri Supreme Court affirmed on October 18, 2005. Storey v. State, 175 S.W.3d 116 (Mo. 2005) (Storey IV). The court also denied his motion for a rehearing on November 22, 2005. Storey filed a Rule 91*fn2 petition for habeas corpus with the Missouri Supreme Court on November 15, 2006, which was denied on December 19, 2006. Storey filed a second Rule 91 petition with the Missouri Supreme Court on December 21, 2006, which was denied on January 30, 2007. On January 18, 2007, he filed a motion to recall the mandate, which the Missouri Supreme Court denied on February 27, 2007. On March 5, 2007, Storey filed the current petition for habeas corpus pursuant to 28 U.S.C. § 2254.

The district court rejected the government's position that the petition should be dismissed as untimely, but denied relief on all grounds and granted a certificate of appealability on four of the claims enumerated above. Prior to the case being set for argument, we expanded the certificate to include another claim concerning victim impact evidence presented at the third penalty-phase hearing.


A. Timeliness

The government initially contends that Storey's petition is untimely, arguing that Storey's most recent actions for state post-conviction relief--the Rule 91 petitions and motion to recall the mandate--did not toll the statute of limitations.*fn3 As we read the briefs, the state does not contest that if Storey is given the benefit of tolling for these filings, the petition was timely. The state argues that the Rule 91 petitions and the motion to recall the mandate are not applications for state post-conviction or other collateral relief because Storey was simply trying to manipulate the system. Until recently we had not decided whether Rule 91 petitions serve to toll the habeas corpus statute of limitations found in 28 U.S.C. § 2244. However, in Polson v. Bowersox, 595 F.3d 873 (8th Cir. 2010), we held that Rule 91 petitions qualify as "other collateral review" for purposes of the habeas corpus statute of limitations. Id. at 875. We have also previously held that a Missouri motion to recall the mandate is "other collateral review" within the meaning of § 2244. Bishop v. Dormire, 526 F.3d 382, 384 (8th Cir. 2008). Under Polson and Bishop, Storey's Rule 91 motions and his motion to recall the mandate met the qualifications set forth in § 2244 and tolled the statute while pending. As we did in Polson, 595 F.3d at 875, we also decline the state's entreaty to "narrow Bishop and hold that a defendant cannot evade the statute of limitations by filing repetitive (and meritless) petitions in the state courts." (Appellee's Opening Brief at 11). Accordingly, we affirm the district court's ruling that the petition was timely.

B. Merits

In this habeas corpus action, we review the district court's conclusions of law de novo and its factual findings for clear error. McGehee v. Norris, 588 F.3d 1185, 1193 (8th Cir. 2009). We may not grant relief for claims adjudicated on the merits by the Missouri state courts unless the adjudication was contrary to, or involved an unreasonable application of federal law as determined by the Supreme Court, or an unreasonable determination of the facts in light of the evidence presented in state court. 28 U.S.C. § 2254(d). A state court decision may be incorrect, yet still not unreasonable, and we will grant relief only if the state court decision is both incorrect and unreasonable. McGehee, 588 F.3d at 1193.

1. Victim Impact Evidence

In Claims 9 and 10 of the habeas corpus petition, Storey argues he was unfairly prejudiced by the government's introduction of victim impact evidence, much of which was not disclosed until the first day of the penalty-phase trial. There are two components to Storey's argument--that Storey was prejudiced by the late hour of the disclosure of some of the victim impact witnesses and exhibits, and that the victim impact evidence from five particular witnesses and certain exhibits violated due process as set forth by the Supreme Court in Payne v. Tennessee, 501 U.S. 808 (1991).

The Missouri Supreme Court adjudicated the late-disclosure facet of Storey's claim and denied the point. Storey III, 40 S.W.3d at 908. The government argues that this portion of the claim is not cognizable because Storey did not present the federal grounds for the argument to the Missouri state court, and his attempts to do so now are procedurally barred. In his reply brief, Storey refutes this and cites to portions of his state appellate brief wherein he cites to the Federal Constitution, and also to the Missouri Supreme Court opinion stating that Storey argued his "rights to due process and a fair trial" were violated by late disclosure. Id. at 906. Additionally, the district court ruled on the merits. We have examined the record and agree with Storey that the federal claim was presented to, and adjudicated by, the Missouri state courts. Accordingly, we review the merits of the claim.

On September 15, 1999, the first day (after two days of voir dire, which occurred September 13-14, 1999) of the third penalty-phase trial, defense counsel and the prosecutor met with the trial court outside the jury's presence. Defense counsel informed the trial court that the prosecution had just given her new discovery, and she objected to its use in the prosecution's opening statement. The new discovery consisted of previously undisclosed witnesses and exhibits. The court told counsel that it would not rule until defense counsel had a chance to examine the evidence, and warned the government not to refer to this evidence in its opening statement. The next day, defense counsel again raised the issue of the undisclosed witnesses and exhibits. The state responded that the three witnesses were victim character witnesses who had no knowledge of the circumstances of the murder. The trial court allowed the state to call these witnesses and allowed the exhibits into evidence. Defense counsel further protested that she had no information regarding the witnesses, and the court responded that the three witnesses would be available for questioning before they testified later that day. The record does not disclose whether counsel interviewed these witnesses before they testified. We note that in the transcript, there was a break in the proceedings shortly before the three witnesses testified, though it is not clear how long the break continued. Storey argues he was unfairly surprised by these witnesses and exhibits and also prejudiced in his ability to conduct voir dire because of the late notice of these victim witnesses, in violation of the Fifth and Sixth Amendments.

The Missouri Supreme Court held that while it was unfortunate that disclosure occurred so late, Storey was not unduly prejudiced nor were his constitutional rights violated. Storey III, 40 S.W.3d at 908. Counsel did have timely notice of four other victim impact witnesses, so counsel was able to prepare voir dire victim impact questions. Id. at 907. The court also noted that defense counsel chose not to cross-examine any of the character witnesses in this case, and there is no indication that an earlier disclosure would have prompted a change in this defense strategy. The court specifically noted that where a party is surprised by evidence, but deals with the evidence in the same manner that it would have if it had been prepared, there is no reason to exclude the evidence based on a discovery violation. Id.

Although the Missouri court did not mention federal law or Supreme Court precedent (nor was it required to, see Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (per curiam)), its decision is not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. Storey argues that the state courts violated his Fifth Amendment right to notice, citing Gardner v. Florida, 430 U.S. 349, 358 (1977), wherein the Supreme Court held that the sentencing process must satisfy the requirements of due process. In Gardner the Court held the defendant was denied due process when the death sentence was imposed on the basis of information in a presentence investigation report which was not disclosed to the defense. Id. at 362. Storey also cites Lankford v. Idaho, 500 U.S. 110, 122, 127 (1991), where the Court held that a defendant who had no notice that the judge might impose the death penalty had been denied due process.

Neither of these cases establishes that the Missouri Supreme Court's decision to deny relief on the basis of untimely disclosure was contrary to, or an unreasonable application of, Supreme Court precedent. A state court's decision is contrary to clearly established Supreme Court law if it "applies a rule that contradicts the governing law set forth in our cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A decision is an unreasonable application of Supreme Court precedent if it correctly identifies the governing legal rule but unreasonably applies it to the facts of the prisoner's case. Id. at 407-08. Storey knew there would be victim impact testimony and knew Frey was a special education teacher. Although probably quite limited, Storey had an opportunity to interview the witnesses before their testimony, and he had the opportunity (though he did not take it), to cross-examine the witnesses. In Gardner, the death penalty was imposed before the defendant knew why it was imposed. In Lankford, the defendant was unaware that the judge was considering imposing the death penalty. Neither of these cases are factually "indistinguishable," nor does the Missouri court opinion contradict the Supreme Court's governing law or unreasonably apply this law to the facts of Storey's case. Storey's Fifth Amendment claim is without merit.

Storey also argues that the state court violated his Sixth Amendment rights as set forth in Ring v. Arizona, 536 U.S. 584 (2002);*fn4 Apprendi v. New Jersey, 530 U.S. 466 (2000); and Jones v. United States, 526 U.S. 227 (1999). This line of cases holds that a defendant is entitled to have a jury decide that he "is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." Apprendi, 530 U.S. at 477 (quotation omitted). Storey argues that the Jones line of cases impacts the late disclosure of victim impact evidence because discovery rules traditionally applied to guilt-phase evidence apply with equal force to penalty-phase evidence. He essentially asserts that he had a Sixth Amendment right to notice of this evidence. Although that is true, this theory does not afford Storey habeas corpus relief under our standard of review. As the Missouri Supreme Court noted, Storey did have notice of, and did expect other victim impact evidence ...

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