                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 14-2667
                          ___________________________

                                 John C. Middleton,

                                        Petitioner - Appellee,

                                          v.

                                     Don Roper,

                                        Respondent - Appellant.

                                    ____________

                      Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                               Submitted: July 15, 2014
                                 Filed: July 15, 2014
                                     [Published]
                                   ____________

Before WOLLMAN, LOKEN, and COLLOTON, Circuit Judges.
                         ____________

PER CURIAM.

      Donald Roper, in his official capacity as superintendent of the Potosi
Correctional Center in the State of Missouri, moves to vacate the district court’s order
staying the execution of John C. Middleton scheduled for 12:01 a.m. on July 16,
2014.




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      On July 14, Middleton filed in the district court a “second-in-time federal
habeas corpus petition and supplemental petition to first habeas corpus application,”
in which he raised four new claims relating to his mental competency to be executed.
The claims alleged that the State of Missouri does not provide adequate procedures
by which Middleton could raise a claim that he is mentally incompetent to be
executed under the Eighth Amendment as interpreted in Ford v. Wainwright, 477 U.S.
399 (1986), and Panetti v. Quarterman, 551 U.S. 930 (2007). The district court,
apparently treating the petition as raising an Eighth Amendment claim under Ford,
concluded that Middleton “has made ‘a substantial threshold showing of insanity’
such that the execution should be stayed until he may receive a hearing on his claim
under Ford that he is not competent to be executed.” R. Doc. 135, at 1.

      The district court rejected the State’s contention that Middleton failed to
exhaust his state remedies in Missouri courts, and that the federal court should have
dismissed the claims on that basis. See 28 U.S.C. § 2254(b)(1). The district court
reasoned that Middleton “has fulfilled the exhaustion requirement because there is no
adequate state remedy available to him.” R. Doc. 135, at 8.

       We state our conclusions briefly because of the exigency of time. We conclude
that Middleton failed to exhaust his present Ford claim in the Missouri courts, and
that it is incorrect for the federal courts to presume that the Supreme Court of
Missouri does not provide an adequate remedy to comply with the Eighth
Amendment and the Supreme Court’s procedural directives in Panetti. Missouri
Supreme Court Rule 91 governing habeas corpus provides that a person under a
sentence of death may file a petition for habeas corpus in the Supreme Court of
Missouri in the first instance. See Mo. Sup. Ct. R. 91.02(b). The state supreme court
has demonstrated that it can receive and consider evidence in an original proceeding
under Rule 91.02. See State ex rel. Amrine v. Roper, 102 S.W.3d 541 (Mo. 2003)
(granting habeas relief based on a showing of actual innocence). Rule 68.03 provides
that an appellate court may appoint a “master” in any pending action to receive

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evidence, make findings of fact and conclusions of law, and present a report to the
appellate court. Mo. Sup. Ct. R. 68.03(d), (f); see Amrine, 102 S.W.3d at 550-51
(Benton, J., dissenting) (proposing appointment of a master to hold a hearing to
resolve disputed facts). Rule 84.24, which governs the procedure as to original writs,
contemplates that a petitioner in an original action may submit exhibits with a
petition, and that a master may hear evidence and produce a report. Mo. Sup. Ct. R.
84.24(g), (h).

      The district court, citing State ex rel. Simmons v. White, 866 S.W.2d 443 (Mo.
1993), concluded that an original habeas corpus action under Rule 91 may be used
in only “a very limited category of cases.” R. Doc. 135, at 7. Simmons said that
proceedings under Rule 91 are limited to determining “the facial validity of
confinement,” and listed—by way of “example”—decisions on bail, whether a
prisoner is confined past the expiration of sentence, whether a parole revocation was
accomplished pursuant to proper procedures, whether an individual is held in custody
without any authority, and jurisdictional issues. Id. at 445 & n.3. Simmons did not
mention Ford hearings, and the district court noted that the Missouri statute regarding
competency hearings applies only when the Director of the Department of
Corrections initiates a proceeding. See Mo. Rev. Stat. § 552.060.2.

       Simmons, however, was decided long before the Supreme Court in Panetti
elaborated on the nature of the process that a State must provide to a prisoner who
claims that he is not mentally competent to be executed. The Missouri statute
regarding competency hearings, while limited by its terms to inquiries initiated by the
department of corrections, also states that “[n]othing in this chapter shall be construed
to limit . . . any court in the exercise of any of their powers in any other manner under
the law or Constitution of Missouri.” Mo. Rev. Stat. § 552.060.5. It is improper for
a federal court to presume that the Supreme Court of Missouri would refuse to adapt
its procedures under Rules 91, 84.24, and 68.03, or other available mechanisms, to
conform to the Constitution of the United States as interpreted by the Supreme Court

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of the United States in Ford and Panetti. Indeed, this court in Franklin v. Luebbers,
No. 13-3506 (8th Cir. Nov. 19, 2013), made the opposite presumption, applying
28 U.S.C. § 2254(d) and the standard applicable to claims “adjudicated on the merits
in State court proceedings” when considering the Supreme Court of Missouri’s
summary denial of a Ford claim. See Harrington v. Richter, 131 S. Ct. 770, 784-85
(2011).

       Middleton has not presented his present Ford claim to the Supreme Court of
Missouri or attempted to invoke the procedures that are available under state law.
The Missouri court has had no opportunity to consider the claim addressed by the
district court or to apply the available Missouri procedures to Middleton’s present
allegation of incompetency to be executed.*

      For these reasons, we conclude that the district court abused its discretion by
staying Middleton’s execution for the purpose of holding a hearing on a Ford claim
that was never presented to the Missouri state courts. The stay of execution entered
on July 15, 2014, is vacated.
                       ______________________________


      *
       On July 7, 2014, Middleton filed a “motion for stay of execution and
appointment of special master to conduct hearing on incompetency” in the Supreme
Court of Missouri. See R. Doc. 130-13 (Motion for Stay & Appointment of Special
Master, State v. Middleton, No. SC80043 (Mo. July 7, 2014)). The motion cited Ford
and Panetti, and alluded to the prospect of a future claim of incompetency to be
executed, but did not assert a substantial threshold showing under Ford or submit the
“preliminary opinion” of Dr. William S. Logan on which the district court relied in
granting a stay of execution. See R. Doc. 135, at 3. The July 7 motion in state court,
like Middleton’s subsequent action in the federal district court under 42 U.S.C.
§ 1983, see Amended Compl., Middleton v. Steele, No. 4:14CV1217 (E.D. Mo. July
14, 2014), ECF No. 17, alleged that the Missouri Department of Corrections violated
the Due Process Clause by impeding Middleton’s ability to develop a substantial
threshold showing under Ford. The state court and the district court both dismissed
these claims. See R. Doc. 130-16 (State v. Middleton, No. SC80043 (Mo. July 10,
2014)); Middleton v. Steele, No. 4:14CV1217 (E.D. Mo. July 14, 2014).

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