missouri's opposition to stay of execution

8/12/2019 Missouri's opposition to stay of execution

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No. 14A-135, 14-5544

IN THE

S U P R E M E COURT OF THE UNITED STATES

THIS IS A CAPITAL CASE

MICHAEL WORTHINGTON

Petitioner,

v

TROY STEELE

Respondent.

Suggestions

in

Oppositiou to Application for

Stay

ofExeoution and Brief

in

Opposition

to Petition for Certiorari

CHRIS KOSTER

Attorney General

Michael J. Spillane

Counsel ofRecord

Assistant Attorney General

Missouri Bar No. 40704

P.O. Box 899

Jefferson City, MO 65102

Telephone: (573)751-7406

Facsimile: (573)751-2096

Attorneys for Respondent


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TABLE OF CONTENTS

TABLE OF AUTORITIES 2

TABLE OF CONTENTS 1

1 . STATEMENT OF THE CASE

..

.. . 3

II. REASONS FOR DENYING THE APPLICATION FOR STAY OF

EXECUTION

5

A. This Court should evaluate the stay motion under the Hill

standard 5

B. Worthington's extreme delay in bringing his claim is an independent and

adequate reason to deny the stay application 6

C. Worthington's constitutional claim is without merit

7

III REASONS FOR DENYING THE PETITON FOR CERTIORARi

9

IV. CONCLUSION .. .. . 1 0


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TABLE OF AUTHORITIES

Greggv . Georgia 4 2 8 U . S .

153

(1976) 9, 10

Harrington v . Richter 131

S . Ct.

770 (2011 ) ,

8

Hicks

v

Oklahoma

447 U.S. 343 1980),

9

Hill

v

McDonough

547 U.S. 573 2006) .. 5, 6, 7,

9

Mazvrek v Armstrong 520 U.S. 968 1997) 6

Missouri

v

Worthington

8

S.W.3d 83 Mo. 1999)

cert.

denied 529 U.S. 1116

C Z O O

O

) .4

Rust

v,

H o p l d l 1 ,

9

4

F

.2d

1 4 8 ( 5

(8

th

Cir

Z O Q I i ) ,

. .

1

0

Strickland

v .

Wa.sh i ng iOn 4 4 3 U .8.1)68 (1984) 7

W i l l il t l l1 v . Rope 695 F .3d 825 ,837 (8

th

O k 2012)

. . . . . .

8

Williams

v.Steele,

134 S.Ot. 85 2013)

8

Worthington v . Roper 631 F.3d 487, 492 8thCir.) eert. denied 132 S.Ot. 763

2011)

3,5,7


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I. STATEMENT OF THE CASE

On September 29 , 19 95 , Mic hael Wo rthington broke into the home of a St.

Charles County, Missouri woman using a razor blade to cut through the screen on her

kitchen window. Worthington v . Roper 631 F.3d 487, 492 (8th Cir.) cert. denied 132

S.Ct. 763 (2011). Worthington strangled the victim to unconsciousness and raped her

with such force that he bruised the inside

of

her vagina, tore both labia minor, and made a

deep tear between the anus and vagina. Id. The victim regained consciousness during the

rape and resisted. Id. Worthington then beat and strangled her to death. Id. He stole her

jewelry, credit cards, mobile phone, key s and car. Id.

police caught Wo rthington with the v ictim s keys and jewelry. Id And

Worthington confessed to the murder when presented with the evidence against him.

ld.

DN A testing later matched sem en on the v ictim s body to Wo rthington. Id.

On August

28,

19 98 , Worthington pled guilty to first-degree murder, first-degree

burglary and forcible rape.

Id.

At a four-day sentencing hearing, the State presented

evidence

of

Worthington's extensive criminal history, including numerouS burglaries,

and twice assaulting his ailing grandfather, once by grabbing him and threatening to kill

him, and another time by shooting

at

him. Id. The State presented evidence that

Worthington had twice been incarcerated in juvenile facilities, and also bad twice been

imprisoned by the Illinois Department

of

Corrections.

ld.

The State also presented

evidence that when inClltcerated after the murder Worthington bad fought with other

inmates, threatened and attempted to assault cort


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A psychOlogist,

Dr. Givon,

testified for the State that he had examined

worthington

because

of a

defense

request for

a pret:r ialmen tal evaluation,

he had twice

administered

th e M M P I - 2

psychological test to Worthington, and h e had

rev iewed

extensive rec.ords on Worthington's background.

Id.

at 493. The psychologist testif ied

Worthington did not have a mental d isease or defect, but that he had 3lltisocial

personality disorder, was

malingering,

cocalne dependent , and an alcohol abuser. Id.

The defense retained D r . Miller , a psychiatrist. [d Dr. M iller 's conclusions

corroborated

Dr.

Givon 's

diagnoses

of antisocial personali ty

disorder,

cocaine

depen\:k; lce, and

alcohol abuse.

Id

Dr. Miller also found there was ev idence that

Wort1\ingtonc deficit hyp eractivity disorder , posM rawnatic stress disorder, m a j o r

depressiVe

disorder

in emission, and a history of cocaine induced

psychosis .

Id. As result

ofthe~e ev(lluatious, the d f e U S i i ' chOse not to present a s e n 1 . < ) n c i n g phase

psychol(>gical

i

mitiga,tion defense,

a nd

lnstead presented

a

sentencing phase

defense

of

abuse and

neglect of Worthington by his family

and babysitter.

[d.

The Court sentenced

Wo rthington to death. Id. at 493-494.

The Missour i

Supreme

Cour l a l f ir tU e d the judgment of convi\)tion a nd

sentence

)J)

direct

appell1. M i s s r > u r

i

v ,

Worthington $ S . W . 3 d 83 ( M o.

1~99)

cert. denied 5 29 U . S .

H16

(2000). The

M issourl post-convict ion rel ief court denied Worthington's post-

convict ion reHef motion, in

2003 ,

after

an evidentiary hearing (Appendix

86-107).

The

Missour i Supreme Court aff irmed the denial of post-conviction relief in

Worthington

v ;

Missour i 166 S . W . 3 d 566 ( M o. 2005). The Uu l t ed States District Court for the EaStern

District of

M issourl granted

a petition for habeas

corpus

In

Worthington v .

Roper 61 9 F .


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Supp.2d 661 (B.D. M o . 2009) . But the United Slaws Court of Appeals for the Eighth

reversed the grant of the writ. Worthington

v .

Roper 6 3 1 F .3d 487 (8th Cir.) cert. denied

132 S.Ct. 763 (2011).

Worthington alleges that on March 14,2014, the Missouri Supreme Court ordered

him to show cause why it should not set a date for his execution (Petition 22).

Worthington alleges that on May 1, 2014 he filed a habeas corpus petition and a motion

to recall the mandate in the Missouri Supreme Court each alleging that the 2005 decision

of

the Missouri Supreme Court afftrming the denial of post-conviction relief did not

adequataly address

his

claw about

fai11lfeto

iuvestigate and present additional

:mitigation

evidence at the penalty phase (Petition at 22 23). The Missouri Supreme Court denied

both motions (Appendix 1-2).

On July 31, 2014, with only three full business days remaining before his

execution, Worthington filed a certiorari petition in this Court alleging the Missouri

Supreme Cour t 's M ay

2005

opinion, supporting its decision

afflrnnngthe

denial of

post-

conviction relief, failed to adequately address his claim alleging failure to investigate and

present mitigating evidence (Petition 23-27).

n REAS ONS FOR DENY ING THE APPLICATION FOR STAY OF

EXECUTION

A .

This Co urt should ev aluate the stay mo tion under the Hill standard.

nHill

v .

McDonough 547 U.S. 573 (2006), this Court held that a pending lawsuit

does not entitle a condemned inmate to a stay of execution as a matter of vv . . . . .'- v.

the State and crime victims have an important interest in the


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death sentence. Id. at 583~4. This Court held applicants seeking a stay must meet all the

elements of a stay, _including,showing a significant possibility of success on the merits.

Id. at 584. A court considering a stay must apply a strong presumption against granting a

stay where the claim could have brought soon enough to allow consideration ofthe merits

without a stay. Id . This Court cited Mazvrek v . Armstrong 520 U.S. 968,972 (1997) (per

curiam), for the proposition that a preliminary injunction [is] not granted unless the

movant, by a clear showing, carries the burden of persuasion.

Hill

547 U.S. at 584.

Worthington does not carry that burden.

B. Worthington's extreme delay in bringing his claim is an independent and

adequate reason to deny the stay application.

Worthington states

that

when the Missouri Supreme Court ordered him in March

2014

to

show cause why that court should not set an execution date he replied that he

still had available avenues to attack his conviction and sentence. (Petition 22).

Worthington states that he then brought his current claim in state court on May 1 , 2014,

after the show cause order put him on notice his execution was imminent (Petition 22).

Worthington's complaint is about a 2005 opinlon

of

the Missouri Supreme Court

that supports the Missouri Supreme Court's decision to affirm the post conviction review

court's denial of post conviction relief (Petition 23-26). Worthington does not offer any

explanation why he did not raise the claim in 2005, or 2010, or 2012. No plausible

explanation exists. Worthington could have raised the claim any time in the last nine

years. But he did not.

Implicit in Worthington's pleading is the idea that he should be able identify


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he perceives a weakness in an opinion published many years ago, but only presents that

perceived weakness to the courts years later when his execution is imminent. That is not

the law. Assuming it had merit the claim could and should have been brought in

2 0 0 5

,

when it. could have been fully litigated, rejected, and forgotten, long before

Worthington's execution became imminent. The claim has value to Worthington now

only as a tool to delay his imminent execution. This Court under the Hill standard should

deny the stay application based on Worthington's delay in bringing the claim.

C.

Worthington s

constitutional claim is

without

merit.

Worthington does not allege in his certiorari petition that this Court should

certiorari in order to review his ineffective assistance

of

trial counsel claim under

Stricklandv. Washington 443 U.S. 668 (1984) (Petition 23-26). The United States Court

of Appeals for the Eighth Circuit denied habeas relief on that claim, and this Court

already.denied certiorari. Worthington

v .

Roper 631 F.3d 487 (8th Cir.) cert. denied 132

S.Ct. 763 (2011).

worthington instead makes a novel

claim,

Worthington does not contest that the

Missouri Supreme Court decision explicitly affirms the post-conviCtion review court's

denial of relief, nor could he. See Worthington 166 S.W.3d at 583 ( the judgment is

affumed ). Instead he assumes that because the opinion

of

the Missouri Supreme Court

supporting the afflrIIlance of the denial of p08t~conviction relief did not specifically

address his tneffective assistance. counsel claim alleging failure to investigate and present

penalty~phase evidence, the Missouri Supreme Court must nothave considered the claim

at all despite its affirmance of the denial of post~conviction relief (Petition at

7


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Worthington also assumes that

if

the Missouri Supreme Court had really considered the

claim it likely would have agreed with him on the issue, not the court whose decision it

affirmed (Petition 25). But both Worthington's assumptions are wrong.

In Harrington v . Richter 1 31 S.Ct. 770, 784-85 (2011), this Court noted there is a

presumption a state court addressed a federal claim on the merits that may be overcome

by a showing some other explanation is more likely. See also Williams

v .

Roper 695 F.3d

825, 837 (8

th

Cir. 2012) (noting that not every approach supporting a decision necessarily

makes it into an opinion and approaches not in the opinion should be considered in

reviewing the decision).

t

is highly implausible that the Missouri Supreme Court failed to consider

Worthington's ineffectiveness claim when it affirmed the decision rejecting the claim,

and when Worthington brought the issue to the Missouri Supreme Court's attention

through both an unsuccessful habeas petition and an unsuccessful motion to recall the

mandate. It is also highly implausible that the Missouri Supreme. Court agrees with

Worthington on the underlying issue but for no apparent reason has repeatedly declined

to mention that when Worthington raises the claim.

Further, Worthington cites no case from any court that is close to being on point

and supports his position. What Worthington is really argues is thatbecause in his view

the Missouri Supreme Court opinion is not artfully drafted the Court has committed a

Due Process Clause violation. That is not the law, and no case he cites supports .that

proposition.

8


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reasonable doubt, but the Nebraska Supreme Court affirmed the death sentence anyway,

despite its opinion in another case issued the same day that proof beyond a reasonable

doubt is the proper standard. The United States Court of Appeals for the Eighth Circuit

found a Due Process Clause violation.ld. at 1495.

Gregg v . Georgia

428 U.S.

1 5 3

(1976), is the case in which this Court upheld the

constitutionality of Georgia' death penalty procedures. t has little to do with

Worthington's case except that both are capital cases.

The fact that the cases Worthington tries to fashion into a conflict have almost

nothing to with the factual and legal issues he actually raises demonstrates this is not an

appropriate case for review on certiorari.

If

there were a conflict on the issue

Worthington raises, and if itwere ready for resolution by this Court, Worthington would

be able to find cases like his demonstrating that conflict. He cannot and does not, because

no such conflict exists.

IV. CONCLUSION

This Court should deny the motion for stay of execution and the petition for

certiorari.

Respectfully submitted,

CHRIS KOSTER

Attorney GeIh7fai

. ? J 1 v . c : / v U ( J f ) ) . I ,, - k : { / < . .f t :

IslMichael J. Spillane


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Counsel of R ecord

Missour i Bar No. 40704

P .O. Box 89 9

Jefferson Ci ty M O 6510 2

P h o n e : 5 7 3 . 7 5 1 . 1 3 0 7

Fax:

5 73 .75 1 .3 825

tn ike .spi l lane@ago. tno.gov

At torneys for R espondents


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missouri's opposition to stay of execution

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