Jake's Ltd., Inc. v. City of Coates

1 The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3972
___________
Harold Newton, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the Eastern
Mike Kemna, * District of Missouri.
*
Appellee. *
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Submitted: September 10, 2003
Filed: January 9, 2004
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Before MORRIS SHEPPARD ARNOLD, BEAM, and BYE, Circuit Judges.
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MORRIS SHEPPARD ARNOLD, Circuit Judge.
Harold Newton was convicted in a Missouri state court of first degree murder,
kidnapping, and two counts of armed criminal action. After exhausting his state post-
conviction remedies, Mr. Newton filed a petition under 28 U.S.C. § 2254. The
district court 1 denied Mr. Newton's petition but granted him a certificate of
appealability on two of his claims relating to the testimony of Carla Ennis. We
affirm.

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I.
Neal Hurst was abducted at gunpoint as he was walking with three
acquaintances in front of his home. Shortly thereafter, while riding in a car that was
being pursued by the police, Mr. Hurst was killed by gunshots fired from inside the
vehicle. At the conclusion of the pursuit, two of the men who were in the car with
Mr. Hurst were arrested, but a third man fled the scene. The next day, Ms. Ennis, a
friend of Mr. Hurst's who was with him when he was abducted, positively identified
the two men who had been arrested as the driver and the person in the right rear
passenger seat, and also gave a description to the police that matched Harold Newton
as the man who had escaped. She testified at trial that, as Mr. Hurst was being forced
into the car by one of the abductors, she ran to the front door of Mr. Hurst's house
where she saw Mr. Newton come out of the house holding a gun, after which he got
into the car with Mr. Hurst and the other two abductors. In addition to Ms. Ennis's
testimony linking Mr. Newton to the crime, Mr. Newton's fingerprints were found on
the outside of the passenger door of the car, and his wallet was found in the glove
compartment.
The trial court, following a pretrial hearing, denied Mr. Newton's motion to
disqualify Ms. Ennis as a witness on the ground of incompetency, and denied his
motion to produce her medical records because she asserted her physician-patient
privilege. Ms. Ennis was the prosecution's only eyewitness identifying Mr. Newton
as one of the persons involved in the abduction of Mr. Hurst. The claims in
Mr. Newton's habeas corpus petition focus largely on certain psychiatric records
pertaining to Ms. Ennis that were reviewed in camera after his conviction by the state
trial and appellate courts. These records, which relate solely to periods of time
occurring after the abduction and murder of Mr. Hurst, consist of medical and
psychological records from Malcom Bliss Mental Health Center and St. John's Mercy
Medical Center and Ms. Ennis's prescription profile from JFK Clinic Pharmacy.

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II.
The district court granted a certificate of appealability to Mr. Newton on two
of his claims: that the trial court erred in limiting his cross-examination of Ms. Ennis,
and that the trial court erred in finding that Ms. Ennis was competent to testify. We
limit our appellate review to the claims specified in the certificate of appealability,
and related discovery decisions made by the district court. We apply the standards
of review set forth in the Antiterrorism and Effective Death Penalty Act, under which
an application for a writ of habeas corpus "shall not be granted" unless the Missouri
courts' adjudication of either of the claims resulted in a decision that was either
"contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States," or "was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding." 28 U.S.C. § 2254(d).
III.
We begin with a consideration of Mr. Newton's confrontation clause claim.
Mr. Newton contends that the trial court violated the sixth amendment's confrontation
clause by denying him access to Ms. Ennis's psychiatric records and restricting his
cross-examination of Ms. Ennis regarding post-offense issues.
Mr. Newton asserted this claim on direct appeal in state court, where he
contended that "the trial court erred and abused its discretion in limiting his cross-
examination of Carla Ennis to an examination of her mental condition on [the date of
the offense] and during times she gave testimony in the case" and that he should have
been able to cross-examine Ms. Ennis regarding her mental state throughout the two-
year period following the offense. The Missouri Court of Appeals rejected the claim,
holding that there was no abuse of discretion by the trial court in limiting
Mr. Newton's proffered impeachment evidence, and concluded that Mr. Newton had
"not pointed out any evidence or testimony, excluded by the trial court during cross-
examination, which reflects on [Ms.] Ennis' ability to recollect her observations about

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the kidnapping." State v. Newton, 925 S.W.2d 468, 472 (Mo. Ct. App. 1996)
(Newton I).
During a pretrial conference, the trial court informed Mr. Newton's counsel that
he could question Ms. Ennis about her drug use, drinking, and mental health before
and at the time that she observed the kidnapping, and at any time that she testified.
The trial court also allowed Mr. Newton to make an offer of proof, outside of the
hearing of the jury, to determine if a continual drug problem would disqualify
Ms. Ennis as a witness.
During cross-examination at trial, Mr. Newton's attorney questioned Ms. Ennis
about specific instances of crack cocaine use on the day of the crime, both before and
after she witnessed Mr. Hurst's kidnapping, and about her alleged drinking on the
night of the incident. Ms. Ennis was also asked during cross-examination whether
she was taking Stelazine, Cogentin, or Prozac on the date of her observations, which
she denied. The trial court refused to allow Mr. Newton's attorney to ask Ms. Ennis
about an alleged suicide attempt that she made several days after the kidnapping and
murder, but other than that, Mr. Newton's attorney made no attempt to ask Ms. Ennis
about her mental health on the dates in question, as the trial court was willing to allow
him to do. Mr. Newton offered the testimony of Ms. Ennis's sister that Ms. Ennis had
turned over some crack cocaine to someone before she went to the police station to
give a statement so that the police would not find it on her, and the observation of
Ms. Ennis's mother that Ms. Ennis was "full of drugs" at the time of the incident.
Defense witnesses also presented testimony providing Mr. Newton with an alibi for
the period of time during which Mr. Hurst was kidnapped and murdered, and an
innocent explanation for the presence of his wallet in the glove compartment and his
fingerprints on the car. Mr. Newton presented the opinions of several witnesses that
Ms. Ennis had a very bad reputation for truth and honesty. Mr. Newton neither
offered nor attempted to offer any observations of Ms. Ennis's mental health on the
relevant dates from people who knew her.

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The confrontation clause, made applicable to the states through the fourteenth
amendment, guarantees the right of an accused in a criminal prosecution "to be
confronted with the witnesses against him." U.S. Const. amend. VI. The Supreme
Court has made clear that "[c]onfrontation means more than being allowed to
confront the witness physically." Davis v. Alaska, 415 U.S. 308, 315 (1974). "[A]
primary interest secured by [the confrontation clause] is the right of cross-
examination." Douglas v. Alabama, 380 U.S. 415, 418 (1965).
The district court held that the trial court's restriction of the scope of
Mr. Newton's cross-examination of Ms. Ennis (specifically, its prohibition of inquiry
into Ms. Ennis's alleged suicide attempt and mental state after the murder) "was
reasonable to accommodate legitimate state interests, namely the protection of a
witness from interrogation that may have been harassing, confusing, or only
marginally relevant to the issues." As the Missouri Court of Appeals found,
Mr. Newton did not demonstrate "how the alleged suicide attempt would have
impeached [Ms.] Ennis' recollection of the incident," and, in seeking "to cross-
examine her regarding her entire psychological history," failed to point "to any
specific facts which reflect on her ability to observe and remember." Newton I,
925 S.W.2d at 472.
Mr. Newton also contends that United States v. Lindstrom, 698 F.2d 1154 (11th
Cir. 1983), supports his claim that the confrontation clause was violated by the denial
of his access to Ms. Ennis's records. In Lindstrom, the Eleventh Circuit, in a direct
appeal from a defendant's conviction, held that the trial court had violated the
confrontation clause by restricting cross-examination and defense access to
documents pertaining to the psychiatric history of the government's witness. Id. at
1159. Even assuming that the Missouri courts' resolution of the confrontation clause
claim was contrary to the Eleventh Circuit's holding in Lindstrom, and that Lindstrom
was correctly decided, that case does not assist Mr. Newton in his § 2254 petition,
since we may grant relief only if the state court has decided a matter contrary to

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clearly established Supreme Court precedent or has unreasonably applied that
precedent, see 28 U.S.C. § 2254(d)(1). Mr. Newton has not identified any clearly
established Supreme Court precedent requiring that a defendant have access to a
witness's psychiatric records for impeachment purposes.
We recognize that one goal of effective cross-examination is to impeach the
credibility of opposing witnesses. The Supreme Court has observed that "the cross-
examiner is not only permitted to delve into the witness' story to test the witness'
perceptions and memory, but the cross-examiner has traditionally been allowed to
impeach, i.e., discredit, the witness." Davis, 415 U.S. at 316. Mr. Newton, however,
has had ample opportunity to cross-examine and impeach the character and testimony
of Ms. Ennis. The trial court's decisions to preclude Mr. Newton from obtaining
access to Ms. Ennis's psychiatric records and from cross-examining her about post-
offense issues were apparently based on the legitimate state interests of avoiding
irrelevant testimony and jury confusion, and protecting Ms. Ennis's assertion of her
physician-patient privilege. The Supreme Court has emphasized that "the
Confrontation Clause guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to whatever extent, the
defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)
(emphasis in original). Thus, "trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on such cross-
examination based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness' safety, or interrogation that is repetitive or only
marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). We agree
with the district court that the Missouri courts' restriction of the scope of
Mr. Newton's cross-examination of Ms. Ennis does not merit federal habeas relief
under the standards set forth in § 2254, and we hold that the state courts' adjudication
of his confrontation clause claim was neither contrary to, nor did it involve an
unreasonable application of, clearly established Supreme Court precedent.

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We note that the Supreme Court has recognized in other circumstances that
constitutional rights can trump evidentiary privileges. For instance, in Davis,
415 U.S. at 319-20, the Court held that Alaska's policy of protecting the anonymity
of juvenile offender records had to yield to a defendant's right to cross-examine a key
witness; and, in Swidler & Berlin v. United States, 524 U.S. 399, 408 n.3 (1998), the
Court expressly left open the question of whether a criminal defendant's constitutional
rights might overcome the attorney-client privilege. Whether a constitutional right
might prevail over a privilege seems to be a function of the relative strength of the
privilege and the nature of the constitutional right at stake, and we are unable to
discern any transcendental governing principles that foreshadow what the Supreme
Court would do in the case before us. Given the restrictive nature of habeas review,
it is not our province to speculate as to whether the Supreme Court, if faced with the
issue, would find that Missouri's physician-patient privilege must give way to a
defendant's desire to use psychiatric records in cross-examination.
IV.
We next address Mr. Newton's claim that during trial the state court erred in
finding Ms. Ennis competent to testify without first examining her psychiatric
records. Mr. Newton has "elected not to brief the merits" of this claim because, he
contends, "he lacks the factual tools he needs to argue his entitlement to habeas
relief." He nevertheless asserts that he "has not abandoned the claim."
Both the Missouri trial court and the Missouri Court of Appeals have
conducted in camera reviews of Ms. Ennis's psychiatric records in conjunction with
this claim. The trial court, following its review of the records, stated that they "do not
contain any relevant and material evidence pertaining to the ability of the witness,
Carla Ennis, to observe and recollect the occurrence ... about which she gave
testimony." The Missouri Court of Appeals, after conducting its review of
Ms. Ennis's psychiatric records, described the state law standard for witness
competency to testify as comprising the following four requirements: "a present

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understanding of, or the ability to understand upon instruction, the obligation to speak
the truth ...; the capacity to observe the occurrence about which testimony is
sought ...; the capacity to remember the occurrence about which testimony is sought;
and ... the capacity to translate the occurrence into words." State v. Newton,
963 S.W.2d 295, 297 (Mo. Ct. App. 1998) (Newton II). The court then noted that
state law provided a presumption that Ms. Ennis was competent to testify absent a
showing by Mr. Newton rebutting the presumption. Id. The court acknowledged that
Ms. Ennis's records indicated that she was a patient at a mental health center three
weeks after the events at issue transpired, but found that "there is no indication that
she was adjudicated as mentally incompetent or confined to this institution during the
period in question," and that the records "did not reveal any relevant and material
information pertaining to the traditional criteria for witness competency" set forth
under state law. Id.
The Missouri courts' resolution of the claim was based entirely on state law.
The trial court applied state law in deciding to quash the subpoena and to find
Ms. Ennis competent to testify, and the appellate court applied state law in holding
that the quashing of the subpoena was not an abuse of discretion, since a review of
the records did not reveal any relevant and material information pertaining to
Ms. Ennis's ability to observe and recollect the occurrence resulting in Mr. Newton's
conviction. In habeas corpus proceedings, it is not within our province "to reexamine
state-court determinations on state-law questions. In conducting habeas review, a
federal court is limited to deciding whether a conviction violated the Constitution,
laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
The district court denied the competency claim, holding that Mr. Newton had
"neither pleaded a constitutional violation nor cited any Supreme Court case in
support of this claim," and that he had not shown why the trial court's decisions,
based on the application of state law, to quash the subpoena and to find Ms. Ennis
competent to testify, were contrary to, or an unreasonable application of, clearly

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established federal law as determined by the Supreme Court. The district court's
conclusion was quite clearly correct.
V.
In addition to his two claims challenging the merits of the Missouri state courts'
decisions, Mr. Newton challenges the federal district court's denial of his requests that
it authorize discovery, or conduct an in camera review, of Ms. Ennis's psychiatric
records, and the court's failure to conduct an evidentiary hearing on his claims. After
filing his federal habeas petition, Mr. Newton filed a motion to authorize discovery
of the records pursuant to Rule 6(a) of the Rules Governing § 2254 Cases, which
governs discovery in § 2254 proceedings. After the district court issued an order
denying discovery, Mr. Newton requested in his motion for reconsideration of the
order that it alternatively conduct an in camera review of the psychiatric records.
(While both the state trial and appellate courts conducted in camera reviews of
Ms. Ennis's psychiatric records, these reviews were limited to determining if
Ms. Ennis was competent to testify against Mr. Newton.)
A.
"A habeas petitioner, unlike the usual civil litigant in federal court, is not
entitled to discovery as a matter of ordinary course." Bracy v. Gamley, 520 U.S. 899,
904 (1997). Rule 6(a), however, provides that "[a petitioner] 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." The Supreme Court has
developed a general approach to the question of whether a petitioner has established
"good cause" sufficient to warrant discovery under Rule 6(a). See Bracy, 520 U.S.
at 904-09. Under Bracy, a habeas court must identify the "essential elements" of the
petitioner's substantive claim, id. at 904, evaluate whether " 'specific allegations ...
show reason to believe that the petitioner may, if the facts are fully developed, be able
to demonstrate that he is ... entitled to relief,' " id. at 908-09 (quoting Harris v.

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Nelson, 394 U.S. 286, 300 (1969)), and, if the petitioner has made such allegations,
" 'provide the necessary facilities and procedures for an adequate inquiry,' " id.
The district court held that Mr. Newton had made "specific allegations"
showing that he might be entitled to relief, but nevertheless denied the motion to
authorize discovery based on the federal psychotherapist-patient privilege as well as
Missouri's interest in preserving mental patients' privacy. We review the district
court's denial of discovery for an abuse of discretion. See, e.g., Toney v. Gammon,
79 F.3d 693, 700 (8th Cir. 1996). Noting that the federal law of privilege is fully
applicable to habeas proceedings under Federal Rule of Evidence 501, the district
court relied on Jaffee v. Redmond, 518 U.S. 1, 9-10, 15 (1996), which recognized a
federal common law psychotherapist-patient privilege, and concluded that
Mr. Newton's motion sought materials "that almost certainly fall squarely within the
scope of the federal psychotherapist-patient privilege." It also noted that the Missouri
Court of Appeals had concluded that the requested material fell within Missouri's
psychotherapist-patient privilege.
Mr. Newton has failed to show that the district court abused its discretion in
denying his motion to authorize discovery due to the privileged status of the
requested documents. In Jaffee, the Supreme Court held that "confidential
communications between a licensed psychotherapist and her patients in the course of
diagnosis or treatment are protected from compelled disclosure under Rule 501 of the
Federal Rules of Evidence." Id. at 15. The Court did not attempt to flesh out the full
contours of the privilege, but it rejected the idea that the psychotherapist-patient
privilege was subject to a balancing test, and stated that "[m]aking the promise of
confidentiality contingent upon a trial judge's later evaluation of the relative
importance of the patient's interest in privacy and the evidentiary need for disclosure
would eviscerate the effectiveness of the privilege." Id. at 17. In a footnote, the
Court speculated that "future developments in the federal psychotherapist privilege"
might uncover situations in which the privilege must give way, citing as an example

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the situation in which "a serious threat of harm to the patient or to others can be
averted only by means of a disclosure by the therapist." Id. at 18 n.19. Though this
sole narrow exception suggested by the Supreme Court does not apply here,
Mr. Newton argues that this footnote indicates that the district court abused its
discretion in finding that Ms. Ennis's psychiatric records were privileged. We
disagree. We believe that Mr. Newton, in essence, is asking us to apply a "balancing"
approach to the psychotherapist-patient privilege, which approach was considered
and expressly rejected by the Supreme Court in Jaffee.
Mr. Newton also cites Pennsylvania v. Ritchie, 480 U.S. 39 (1987), to support
his contention that the federal psychotherapist-patient privilege must give way to a
criminal defendant's constitutional right to confront witnesses against him. In Ritchie,
480 U.S. 43-45, the defendant, who had been convicted of child molestation, had
sought to have records of a state protective services agency responsible for
investigating cases of child mistreatment disclosed during pretrial discovery.
Pursuant to a Pennsylvania statute, the records were subject to a qualified
confidentiality. Id. at 57-58. Applying the rule of Brady v. Maryland, 373 U.S. 83,
87 (1963), the Supreme Court held that, when state law provides such a qualified
confidentiality, a criminal defendant has the right, under the due process clause of the
fourteenth amendment, to have the records reviewed in camera by the judicial
authority to determine whether they contain potentially exculpatory information. Id.
at 57-58. As Mr. Newton acknowledges, his claim is not a due process claim under
Brady; it is, rather, a claim that the confrontation clause conferred a right to discover
information necessary to make cross-examination more effective. While both a Brady
due process claim and a confrontation clause claim were at issue in Ritchie, the Court
did not produce a majority on the proper application of the confrontation clause to the
pretrial discovery issue presented in that case. A plurality of the Court, however,
concluded that the confrontation clause is not applicable to a claim involving the
denial of access to pretrial materials. Id. at 51-54 (plurality opinion). Ritchie,
moreover, involved a state statute protecting a public agency's case files in a qualified

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way, rather than a privilege based on federal common law, and did not involve
psychiatric records, which the Supreme Court recognized as falling under a federal
common law privilege in Jaffee.
Mr. Newton maintains that Love v. Johnson, 57 F.3d 1305 (4th Cir. 1995),
supports his position that, even if the district court did not abuse its discretion by
refusing to grant him discovery, it abused its discretion by failing to conduct an in
camera review of the records. The Fourth Circuit held in Love that the defendant,
who had been convicted in state court of the rape of a minor and related sexual
offenses, see 57 F.3d at 1306-07, was entitled to have psychiatric records in the hands
of state agencies reviewed by the district court to determine whether they contained
information that probably would have changed the outcome of his trial, see id. at
1315-16. Love, however, involved a Brady due process clause claim rather than a
confrontation clause claim, as is at issue here, and, moreover, it predated the Supreme
Court's decision in Jaffee, 518 U.S. at 15, which recognized for the first time the
federal common law psychotherapist-patient privilege. The holding in Love appears
to us to contradict the Supreme Court's disapproval in Jaffee of the in camera review
of psychiatric records.
In light of the sparse and conflicting authority adopting Mr. Newton's position
that psychiatric records are discoverable, or subject to an in camera examination,
when a criminal defendant seeks them to aid in his defense, Mr. Newton's failure to
identify even a single federal appellate court adopting this position, and the evident
conflict of this position with the Supreme Court's holding in Jaffee, we hold that the
district court did not abuse its discretion in denying Mr. Newton's request that it
authorize discovery or conduct an in camera review of the psychiatric records.
B.
Mr. Newton argues that the district court wrongly denied his request for an
evidentiary hearing. We review a district court's decision on a habeas petitioner's

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request for an evidentiary hearing for an abuse of discretion. See Johnston v.
Luebbers, 288 F.3d 1048, 1059-60 (8th Cir. 2002), cert. denied, 537 U.S. 1166
(2003). We have held that "the district court must hold such a hearing if the
petitioner has alleged disputed facts which, if proved, would entitle him to habeas
relief." Smith v. Bowersox, 311 F.3d 915, 921 (8th Cir. 2002), cert. denied, 124 S. Ct.
233 (2003). In contrast, the court may deny an evidentiary hearing if such a hearing
would not assist in resolving the petitioner's claim. Johnston, 288 F.3d at 1059. "In
other words, even if the facts [the petitioner] seeks to prove are true, if those facts
would not entitle him to relief (that is, if those facts would not show that the [state
court] acted contrary to or unreasonably applied clearly established federal law), then
the District Court did not abuse its discretion in denying [the petitioner's] request for
an evidentiary hearing." Id.
We hold that the district court did not abuse its discretion in denying
Mr. Newton's request for an evidentiary hearing. Mr. Newton has failed to allege
disputed facts which, if proved, would indicate that the Missouri courts acted contrary
to, or unreasonably applied, clearly established federal law when they rejected his
confrontation clause or competency claims. Indeed, it is entirely unclear from
Mr. Newton's brief what facts he would seek to prove at an evidentiary hearing. The
district court did not abuse its discretion by concluding that the record contained all
the facts necessary to resolve Mr. Newton's claims, and that no further evidentiary
development was required.
VI.
For the reasons indicated, we affirm the district court's denial of Mr. Newton's
§ 2254 petition.
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