No.

14A-135, 14-5544
IN THE
SUPREME 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 of Record
Assistant Attorney General
Missouri Bar No. 40704
P.O. Box 899
J efferson City, MO 65102
Telephone: (573)751-7406
Facsimile: (573)751-2096
Attorneys for Respondent
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 .. .. .. 10
TABLE OF AUTHORITIES
Gregg v. Georgia, 428 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
CZ OOO ) .4
Rust v, Hop l d l 1 $ , 9 $4 F .2d 148(5 (8th Cir Z OQ Ii), .. 1
0
Strickl and v. Wa.shingiOn, 443U .8.1)68 (1984) 7
W il l il tl l 1 $ v. Rop e, 695 F.3d 825,837 (8th Ok 2012) .. .. .. 8
Williams v.Steel e, 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
I. STATEMENT OF THE CASE
On September 29, 1995, Michael Worthington broke into the home of a St.
Charles County, Missouri woman using a razor blade to cut through the screen on her
kitchen window. W orthington v. Rop er, 631 F.3d 487, 492 (8th Cir.) cert. d enied 1 32
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, keys and car. Id.
police caught Worthington with the victim's keys and jewelry. Id. And
Worthington confessed to the murder when presented with the evidence against him. l d .
DNA testing later matched semen on the victim's body to Worthington. Id.
On August 28, 1998, 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. l d . The State also presented
evidence that when inClltcerated after the murder Worthington bad fought with other
inmates, threatened and attempted to assault cort<lctional officers, and had hidden
contraband including a razor blade in his cell. Id. at 492-93.
3
A psychOlogist, Dr. Givon, testified for the State that he had examined
worthington because of a defense request for a pret:rialmental evaluation, he had twice
administered the MMPI-2 psychological test to Worthington, and he had reviewed
extensive rec.ords on Worthington's background. Id . at 493. The psychologist testified
Worthington did not have a mental disease or defect, but that he had 3lltisocial
personality disorder, was malingering, cocalne dependent, and an alcohol abuser. Id .
The defense retained Dr. Miller, a psychiatrist. [d. Dr. Miller's conclusions
corroborated Dr. Givon's diagnoses of antisocial personality disorder, cocaine
depen\:k;!lce, and alcohol abuse. Id. Dr. Miller also found there was evidence that
Wort1\ingtonc deficit hyperactivity disorder, posMrawnatic stress disorder, major
depressiVe disorder in remission, and a history of cocaine induced psychosis. Id . As result
ofthe~e ev(lluatious, the d"feUSii' chOse not to present a sen1.<)ncing phase psychol(>gical
i'
mitiga,tion defense, and lnstead presented a sentencing phase defense of abuse and
neglect of Worthington by his family and babysitter. [d . The Court sentenced
Worthington to death. Id. at 493-494.
The Missouri Supreme Courl al'firtUed the judgment of convi\)tion and sentence ()J )
direct appell1. M issr> uri v, W orthington, $ S.W.3d 83 (Mo. 1~99) cert. d enied 529 U.S.
H16 (2000). The Missourl post-conviction relief court denied Worthington's post-
conviction reHef motion, in 2003, after an evidentiary hearing (Appendix 86-107). The
Missouri Supreme Court affirmed the denial of post-conviction relief in W orthington v;
M issouri, 166 S.W.3d 566 (Mo. 2005). The Uulted States District Court for the EaStern
District of Missourl granted a petition for habeas corpus In W orthington v. Rop er, 619 F.
Supp.2d 661 (B.D. Mo. 2009). But the United Slaws Court of Appeals for the Eighth
reversed the grant of the writ. W orthington v. Rop er, 631 F .3d 487 (8th Cir.) cert. d enied
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 J uly 31, 2014, with only three full business days remaining before his
execution, Worthington filed a certiorari petition in this Court alleging the Missouri
Supreme Court's May 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. REASONS FOR DENYING THE APPLICATION FOR STAY OF
EXECUTION
A. This Court should evaluate the stay motion under the Hill standard.
In Hil l v. M cDonough, 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
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 of the merits
without a stay. Id . This Court cited M azvrek 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
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 2005,
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
Strickl and v. W ashington, 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. W orthington v. Rop er, 631 F.3d 487 (8th Cir.) cert. d enied 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 W orthington, 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 not have considered the claim
at all despite its affirmance of the denial of post~conviction relief (Petition at
7
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, 131 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 al so W il l iams v. Rop er, 695 F.3d
825, 837 (8th 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).
It 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
Ill. REASONS FOR DENYING THE PETITON FOR CERTIORARI
Worthington alleges the one sentence order denying his state habeas petition
(Appendix 1) conflicts with Hicks v. Okl ahoma, 447 U.S. 343 (1980), Rust v. Hop kins,
984 F.2d 1486 (2006), and Greg v. Georgia, 428 U.S. 153 (1976) (Petition 27).
Worthington's claim is that the Missouri Supreme Court opinion affirming the denial of
post-conviction relief, by not discussing one of his claims, proves the Missouri Supreme
Court did not consider the claim, and that lack of consideration is itself a Due Process
Clause violation (petition 23-27). The cases with which Worthington alleges a conflict do
not conflict with the Missouri Supreme Court decision and are only related to it on the
broadest levels of generality.
Fl icks v. Okl ahoma, 447 .U.S. 343 (1980), was a case in which the Oklahoma
Court. of Criminal Appeals recognized that under Oklahoma law the criminal defendant
had a right to jury sentencing, and that the defendant had been deprived of that right by
an unconstitutional jury instruction directing the jury that it must impose a forty-year
sentence. J d. at 345-346. But the Oklahoma. Court of Criminal Appeals aff111Ued the
sentence anyway, on the theory that the defendant was not prejudiced because a properly
instructed jury could have imposed any sentence not less than ten years, and this included
the forty-year sentence the jury was directed to impose. Id . This Court held that "[s]uch
an arhi~rary disregard of the petitioner's right to liberty is a .denial of due process of law."
l d . at 346.
Rustv. Hop kins, 984 F.2d 1486 (8th Cir2006), was a case in which a sentencing
imstances under a standard of proof
9
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. 153 (1976), is the case in which this Court upheld the
constitutionality of Georgia' death penalty procedures. It 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 it were ready for resolution by this Court, Worthington would
be able to find cases l ike 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: / vU ( J f ) ) .I,,- k: { / < ..f t:
IslMichael J . Spillane
Counsel of Record
Missouri Bar No. 40704
P.O. Box 899
J efferson City MO 65102
Phone: 573.751.1307
Fax: 573.751.3825
tnike.spillane@ago.tno.gov
Attorneys for Respondents
CERTIFICATE OF SERVICE
IN THE SUPREME COURT OF THE UNITED STATES
No. 14A-135, 14-5544
MICHAEL WORTHINGTON,
Petitioner,
v.
TROY STEELE,
Respondents.
I hereby certify that I am a member of the Bar of this Court and that a copy of the
Suggestions in Opposition to the Application for Stay of Execution and Brief in
Opposition to Petition for Certiorari in the case of M ichael W orthington v. Troy Steel e,
No. 14A-135, 14-5544 will be mailed, pursuant to Supreme Court Rules 29.2 and
29.5(b), postage prepaid, this 1st day of August, 2014, to:
Scott Harris, Clerk
United States Supreme Court
1 First Street, N.E.
United States Courthouse
Washington, D.C. 20543
Further, I hereby certify that a copy of the foregoing document in this cause will
be mailed pursuant to Supreme Court Rule 29.5(b) postage prepaid, this 1st day of
August, 2014, to:
Kent Gipson
Attorney at Law
121 E Gregory Blvd .
. Kansa City, MO 64114