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No. 96-8089
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Richard Dennis Oxford, *
*
Petitioner, * Petitioner's Motion to Authorize
* the Filing of a Successive
v. * Habeas Petition and for
* Stay of Execution of His
Michael Bowersox, * Sentence of Death
*
Respondent. *
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Submitted: June 10, 1996
Filed: June 11, 1996
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Before BOWMAN, HEANEY, and FAGG, Circuit Judges.
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BOWMAN, Circuit Judge.
Petitioner Richard Dennis Oxford's execution is scheduled for 12:01
a.m. CDT on June 12, 1996.
On June 7, 1996, the district court ruled on the merits of Oxford's
second habeas petition and denied it. That ruling, in which the district
court found Oxford competent to be executed, has not been appealed.
On June 10, 1996, Oxford filed with this Court a motion for an order
authorizing him to file a third habeas petition in the district court
pursuant to the Terrorism Prevention Act of 1996, Pub. L. No. 104-132,
§ 106, 1996 U.S.C.C.A.N. (110 Stat.) 1214, 1220-21 (to be codified at 28
U.S.C. § 2244). In response, the state has suggested, for what clearly are
purely tactical reasons, that this Court should grant Oxford's motion. The
state candidly acknowledges that Oxford's motion does not fulfill the legal
standard established by § 2244(b)(3), which governs our authority
to authorize the filing of a second or successive habeas petition under 28
U.S.C. § 2254 (1994).
We agree with the state's assessment of our proper authority in
matters of this kind. Oxford's motion does not meet the applicable legal
standard. Accordingly, the motion is denied.
We hold not only that Oxford's motion must be denied under 28 U.S.C.
§ 2244(b)(3). We also hold that, under the law antedating the new statute,
the proposed third habeas petition would be an abuse of the writ, because
the change in the law (Missouri's repeal on January 1, 1996, of its former
Rule 29.15) that, according to Oxford, is the basis for overturning the
procedural bar to Oxford's claims found by this Court in Oxford v. Delo,
59 F.3d 741, 744-45 (8th Cir. 1995), cert. denied, 116 S. Ct. 1361 (1996),
could have been raised in Oxford's recently concluded second habeas
petition. Thus, the proposed third petition, if filed, would be subject
to dismissal as an abusive petition. See McCleskey v. Zant, 499 U.S. 467,
489 (1991).
Oxford's motion to authorize the filing of his third habeas petition
is denied. His motion for a stay of execution is denied.
Heaney, Circuit Judge, dissenting.
The government joined Richard Oxford in his request that we authorize
the district court to consider his third petition for writ of habeas
corpus. In light of the government's position, I would grant Oxford leave
to file his petition in the district court. The majority, however, has
decided to deny Oxford's application. Because Oxford raises valid claims
of ineffective assistance of trial counsel that have never been addressed
on the merits by any court, I dissent.
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As I expressed in my original dissent in this case, Oxford's counsel
was ineffective at the sentencing proceedings because he failed to present
mitigating evidence as to why Oxford should not be sentenced to death.
Oxford v. Delo, 59 F.3d 741, 749 (8th Cir. 1995), cert. denied, 116 S.Ct.
1361 (1996). The record contains overwhelming mitigating evidence of
Oxford's troubled social, mental, and emotional history. At the sentencing
phase, however, his trial counsel presented virtually no mitigating
evidence to the jury. As I previously stated:
"The jury is entitled to receive as much information as
possible in order to make an informed decision as to
punishment." State v. Leisure, 749 S.W.2d 366, 379 (Mo. 1988)
(citations omitted), cert. denied, 113 S.Ct. 343 (1992). The
concept of individualized sentencing in capital cases requires
that the sentencer possess "the fullest information possible
concerning the defendant's life and characteristics" as well as
the circumstances of the particular offense. Lockett v. Ohio,
438 U.S. 586, 602-04 (1978) (internal quotations and citations
omitted).
Id. Had Oxford's trial counsel presented the available mitigating
evidence, I am convinced that no reasonable jury would have sentenced him
to death.
The majority declined to consider the merits of Oxford's ineffective
assistance claims because of a state procedural bar. Specifically, Oxford
failed to verify his amended motion for post-conviction relief, as
previously required under Rule 29.15 of the Missouri Rules of Criminal
Procedure. Recent amendments to Rule 29.15, eliminate the verification
requirement, thereby removing the only impediment to our review of Oxford's
claims on their merits. Neither the law nor my conscience permits me to
sign onto the majority's opinion. We should undertake this review
promptly.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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