Petition for Writ of Certiorari — Athanasiades v. Luebbers

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(\ FILED

001923 WN 25 299)

Nop. OFRIGE OF THE Cura

In The

Supreme Court of the United States

MICHAEL ATHANASIADES,

Petitioner,

MICHAEL BOWERSOX, Superintendent of the

Potosi Correctional Center,

Respondent,

and

JEREMIAH “JAY” NIXON, Attorney General

of the State of Missouri,

Additional Respondent.

On Petition For A Writ Of Certiorari

To The Court Of Appeals

For The Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

Barry A. SHORT

Counsel of Record

Lewis, Rice & Fincersn, L.C.

500 N. Broadway, Suite 2000

St. Louis, Missouri 63102-2147

Telephone: (314) 444-7600

Facsimile: (314) 241-6056

Tune 2001 Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

—-

QUESTIONS PRESENTED FOR REVIEW

(1) May the prosecution deliberately suppress

impending plot of fabricated expert testimony without

violating Brady, by simply disclosing autopsy report

refuting fabrication, and, if not, did Eighth Circuit err in

denying a certificate of appealability (“COA”) from dis-

trict court’s assessment of the constitutional claim?

(2) Did district court err in finding failure to show

cause for procedural default of Brady claim, because

autopsy report refuting fabrication was disclosed to

counsel, and, if so, did Eighth Circuit err in denying COA

from district court’s procedural ruling?

(3) Did district court err in sua sponte finding subor-

nation of perjury claim defaulted when state’s interest in

correcting manifest injustice trumps interest in pro-

cedural rule, and when state’s rule is not adequate, and,

if so, did Eighth Circuit err in denying COA from district

court’s procedural ruling?

(4) Was defendant deprived of the effective assis-

tance of counsel, when counsel failed to impeach the

state’s expert’s fabricated testimony, and failed to present

critical evidence to corroborate defendant’s trial testi-

mony, and, if so, did Eighth Circuit err in denying COA

from district court’s assessment of the constitutional

claim?

PARTIES

The parties to this case are set out in the caption of

this case. Mr. Al Luebbers, however, is now the superin-

tendent of the Potosi Correctional Center, and is an

appropriate respondent.

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY PROVI-

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DUPRE MIENME GAP EEE CA ec ccc cctccccscccsccccn 3

REASONS FOR GRANTING THE WRIT ........... 16

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SRE a Re App. 1

TABLE OF AUTHORITIES

Page

Cases

Brady v. Maryland, 373 U.S. 83 (1963). .17, 18, 19, 20, 21

Brecht v. Abrahamson, 507 U.S. 619 (1993)............ 27

California v. Trombetta, 467 U.S. 479 (1984)........... 27

Chambers v. Mississippi, 410 U.S. 284 (1973).......... 27

Coleman v. Thompson, 501 U.S. 722 (1991)......... ak, a6

Crane v. Kentucky, 476 U.S. 683 (1986)....... Seren 27

Donnelly v. DeChristoforo, 416 U.S. 637 (1974)........ 16

Harris v. Reed, 489 US. 255 (1989)... 2. cccccsccess y

Henry v. Mississippi, 379 U.S. 443 (1965).......... aa, ae

Johnson v. Mississippi, 486 U.S. 578 (1988)......... 24, 25

Mooney v. Holohan, 294 U.S. 103 (1935) ........... Za, 22

Murray v. Carrier, 477 U.S. 478 (1986) ............... 22

Picard v. Connor, 404 U.S. 270 (1971) ................ 24

Rickman v. Dutton, 864 F. Supp. 686 (M.D. Tenn.

Sn doe 6adabvcadendaccanseswed nde dpecsenesned a a

Slack v. McDaniel, 529 U.S. 473 (2000) ............... 20

Smith v. Digmon, 434 U.S. 332 (1978) ................ 24

State v. Athanasiades, 857 S.W.2d 337 (Mo. Ct. App.

SOON ss vind nd dad a bdbkecbekeudagkses hi cnohes oan 14, 15

State v. Paglino, 319 S.W.2d 613 (Mo. 1958).......... ey

State v. Weiss, 24 S.W.3d 198 (Mo. Ct. App. 2000) .... 24

Stome & Pool, 420 US. G66 C97). 600s ccciccsisnces 27

TABLE OF AUTHORITIES - Continued

Page

Strickler v. Greene, 527 U.S. 263 (1999)............ 18, 20

United States v. Agurs, 427 U.S. 97 (1976)......... 19, 21

United States v. Bagley, 473 U.S. 667 (1985) .......... 19

United States v. Gonzales, 90 F.3d 1363 (8th Cir.

DO ink dG a ee 18

Wainwright v. Sulies, ROD GED. Te CGF ok no cence 23

Williams v. Taylor, 529 U.S. 362 (2000)............... 27

STATUTES AND RULES

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CONSTITUTIONAL PROVISIONS

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OPINIONS BELOW

January 21, 2000 Report and Recommendation of Magis-

trate Judge, Athanasiades v. Bowersox, et al., No.

4:96CV730CEJ(TIA) (E.D. Mo.).

August 28, 2000 Order of District Court Adopting Report

and Recommendation and Denying Petition for Writ of

Habeas Corpus.

October 2, 2000 Order of District Court Denying Certifi-

cate of Appealability.

December 28, 2000 Judgment of United States Court of

Appeals for the Eighth Circuit.

January 26, 2001 Order of Eighth Circuit Denying Petition

for Rehearing and Rehearing En Banc.

Justice Thomas’ Order of March 29, 2001 Granting Peti-

tioner until June 25, 2001 to File Petition for a Writ of

Certiorari.

JURISDICTION

This is a habeas corpus case, initiated pursuant to 28

U.S.C. § 2254. On December 28, 2000, the Court of

Appeals for the Eighth Circuit (“Eighth Circuit”) denied

petitioner a certificate of appealability (“COA”) following

the district court’s denial of his petition for a writ of

habeas corpus. The district court denied the habeas peti-

tion on August 28, 2000, and denied a COA on October 2,

2000. On January 26, 2001, the Eighth Circuit also denied

petitioner’s request for rehearing and rehearing en banc.

Justice Thomas granted petitioner until June 25, 2001 in

which to file the instant petition for a writ of certiorari.

This Court has jurisdiction to review the Eighth Circuit’s

denial of a COA pursuant to 28 U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. art. III, § 2, cl. 2 provides in relevant part:

In all of the other cases before mentioned, the

Supreme Court shall have appellate Jurisdiction

both as to Law and Fact, with such Exceptions,

and under such Regulations as the Congress

shall make.

U.S. Const. amend. XIV, § 1 provides in relevant part:

[NJor shall any state deprive any person of life,

liberty or property without due process of

eer

U.S. Const. amend. VI, provides in relevant part:

In all criminal prosecutions, the accused shall

enjoy . . . the Assistance of Counsel for his

defence.

28 U.S.C. § 2254(a) provides, in pertinent part:

The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an appli-

cation for a writ of habeas corpus in behalf of a

person in custody pursuant to the judgment of a

State court only on the ground that he is in

custody in violation of the Constitution or laws

or treaties of the United States.

28 U.S.C. § 2253(c)(2) provides in relevant part:

A certificate of appealability may issue under

paragraph (1) only if the applicant has made a

substantial showing of the denial of a constitu-

tional right.

STATEMENT OF THE CASE

A. Summary of Petitioner’s Trial, State Court Post-

Conviction Proceedings and Appeals.

A jury in the City of St. Louis, Missouri found peti-

tioner guilty of murder in the first degree and armed

criminal action in connection with the shooting death of

his wife, G. Zeta Athanasiades. At trial, petitioner pre-

sented substantial evidence of two valid defenses of justi-

fication: first, self-defense, in that his wife was

attempting to murder him with a butcher knife; and,

second, the defense of a third party - petitioner’s two-

year-old son — whom petitioner was holding in his arms

when his wife attacked him.

These valid defenses were rendered invalid, requir-

ing the jury to convict petitioner consistent with the

state’s charges, because the state prosecutor, Mr. Nels

Moss, presented a false evidentiary picture in support of

a theory that petitioner shot and killed his wife after she

fell on the floor. (Trial Transcript (“T.Tr.”) 330-331).}

Together with the Chief Medical Examiner of the City of

St. Louis, Dr. Michael Graham, Mr. Moss supported the

1 Pursuant to Supreme Court Rule 12.7, petitioner cites

herein to the record before the court below.

false evidentiary picture through the knowing use of

fabricated expert forensic evidence and perjured testi-

mony. He also deliberately suppressed evidence speci-

fically requested by the defense prior to trial that would

have exposed, impeached, and refuted the false testimony

that was presented against petitioner at trial.

1. The record plainly reflects that the prosecution

knowingly presented fabricated expert testi-

mony.

Petitioner’s constitutional grievances revolve around

the exit wound from the fourth of five gun shot wounds

that were fired during the shooting incident. This fourth

shot exited his wife’s left front abdomen and reentered

her left wrist, upon which she ultimately fell. Petitioner’s

trial testimony was that he had fired all of the shots while

she was attacking him with a butcher knife, and while he

was holding their infant son in his arms. (T.Tr. 1304-1322).

The prosecutor’s theory was that petitioner had fired the

fourth and fifth shots, execution-style, after his wife fell

and was lying prone on the floor. (T.Tr. 330-331).

When Dr. Graham performed the autopsy, he

recorded that the exit wound from the fourth shot was

“clean.” As Dr. Graham testified at trial, when a bullet is

exiting the body, if there is nothing on the outside of the

skin pressing at the exit site, the bullet exits the skin and |

leaves the skin edges around the exit wound “clean,” free |

of scrapes or abrasions. On the other hand, if there is

something against the skin firm enough to support it, as

the bullet is pushing its way out it crushes the skin

between the bullet and whatever the supporting material

happens to be. In that case, it leaves “scrapes — abrasions”

around the edges of the exit wound. Such an exit wound

is called “shored” or “supported,” as Dr. Graham testi-

fied. (T.Tr. 994-995). According to Dr. Graham’s testi-

mony, forensic science dictates that, if the defendant had

in fact fired the fourth shot at his wife as she was laying

on the floor on top of her arm, the pressure of her wrist

on which she was lying against the abdominal exit would

have created a shored exit wound on the abdominal wall.

(T.Tr. 994-997).

Mr. Moss and Dr. Graham took advantage of the

unique position in which the decedent fell on the floor,

and fabricated the shored exit wound that would have

been created if she had been shot in that manner. After

explaining to the jury the forensic science regarding a

shored wound, Dr. Graham told the jury that the abdomi-

nal exit wound was shored. (T.Tr. 995, lines 11-12.) As will

be explained below, this was a fabrication. Dr. Graham

then asserted the conclusion that the decedent’s wrist

must have been pressed against the abdominal exit dur-

ing the infliction of that wound, so as to cause the shored

wound. (T.Tr. 995, lines 19-21.) Dr. Graham added that it

was “consistent” with this evidence for the victim to have

been shot from above as she lay prone on the floor. (T.Tr.

996, lines 17-25; T.Tr. 997, lines 1-10.) Dr. Graham’s trial

testimony (contrary to his autopsy report) was consistent

with the decedent having been on the floor when the

fourth shot was fired (as the prosecutor contended), and

that petitioner was guilty of first-degree murder (instead

of not guilty based upon the asserted defenses). If the

fourth shot had been fired while petitioner’s wife was on

the floor, according to the prosecution’s theory, the fatal

fifth shot was too. (T.Tr. 1009).

In any case, during the second round of state post-

conviction hearings conducted pursuant to Missouri

Supreme Court Rule 29.15, while presenting evidence

regarding his trial counsel’s ineffectiveness, petitioner

(acting pro se) was able to amass extraordinary admis-

sions from Dr. Graham. All were made in the presence of

Mr. Moss, who was representing the state at the hearing,

and who had orchestrated the fabricated forensic testi-

mony. During these hearings, Dr. Graham disclosed that

when he performed the autopsy, he found the fourth shot

abdominal exit wound to have been clean as opposed to

shored. (PCR Tr. 157-159, of April 7, 1994 hearing; PCR Tr.

35 of July 22, 1994 hearing). In the same hearings, Dr.

Graham retracted the essential conclusion upon which his

shored wound opinion had been based: Dr. Graham testi-

fied that the wrist was in close proximity to decedent's

body during the infliction of the wound, as opposed to

being pressed up against her body. (PCR Tr. 172 of April

7, 1994 hearing.) Moreover, in the presence of Mr. Moss,

Dr. Graham revealed the critical fact that he and Mr. Moss

had met a few days before trial and had discussed the

presentation of the shored exit wound. (PCR Tr. 157-159 &

171 of April 7, 1994 hearing; PCR Tr. 35-36 of July 22, 1994

hearing). These admissions establish that Petitioner’s

convictions resulted from a very serious abuse of the

judicial process, and fraud upon the court and jury by

judicial officers of the court.

During the second post-conviction hearings, Dr.

Graham also attempted to cover up the perjury that he

had committed during trial by stating that the finding of

the shored wound was based upon a photograph from

the scene of the shooting, which he saw for the first time

only a few days before trial. During trial, Dr. Graham had

testified that he had reviewed the photographs from the

scene just before he performed the autopsy, and that they

accurately reflected the wounds as he saw them on the

body. (T.Tr. 985-986.) When he was confronted with this

testimony, Dr. Graham retracted the previous explana-

tion: “I obviously didn’t see her body at the scene so I

couldn’t comment on whether the photographs were

accurate from the scene. | can only tell you what I saw in the

morgue.” (PCR Tr. 28-29 of July 22, 1994 hearing)

(emphasis added). Thus, while Dr. Graham has not

expressly stated that be committed perjury during peti-

tioner’s trial, the admissions he made conclusively prove

as much.

During trial, Dr. Graham was explicitly asked to

describe his findings regarding the wounds from having

performed the autopsy. (T.Tr. 980.) Nothing was ever said

during trial about the shored wound being found in a

picture taken of the scene. Indeed, at trial, the prosecutor

explicitly represented to the defense expert, Dr. Charles

Petty, that Dr. Graham found the shored wound by

“observing and looking at the body.” (T.Tr. 1568). After

all, it would have been inadmissible during trial for Dr.

Graham to testify to his expert findings and conclusions

without having first submitted the bases for those find-

ings. E.g., State v. Paglino, 319 S.W.2d 613 (Mo. 1958). Dr.

Graham’s belated explanation regarding the scene photo-

graph was further perjury in an attempt to cover up the

perjury that had occurred during trial. When exposed as

a second fabrication, however, it too was retracted by Dr. |

Graham.

To prove that Dr. Graham was again lying in an

attempt to cover up the false testimony he had offered

during trial regarding his finding of a “shored” wound,

petitioner called one of the most respected forensic

pathologists in Missouri, Dr. Jay Dix. During the second |

post-conviction hearings, Dr. Dix examined “Movant's |

Exhibit (AA),” the scene photograph that Dr. Graham had

supposedly relied upon for his finding of a shored

wound. Dr. Dix testified that the exhibit depicted a clean

exit wound. Dr. Dix further explained that if there had

been any scrapes around the edges of the wound, they

would not have disappeared as Dr. Graham claimed -

they would have been there when the autopsy was per-

formed. (PCR Tr. 50-52, of July 22, 1994 hearing.)

Dr. Dix ultimately concluded to a scientific level of

certainty that the decedent was upright when the last two

shots were fired. (PCR Tr. 55-56, 80, of July 22, 1994

hearing). The evidence upon which he reached this con-

clusion included the fact that the abdominal exit wound

was not shored, (which it would have been if the dece-

dent had been shot in the manner the prosecution con-

tended). It also included a photograph taken at the scene,

depicting the last entry wound below the decedent’s left

shoulder, with blood running straight down to her waist.

The blood would have run to the side if she had been |

lying on the floor when shot. It included the fact that

there was no gunshot residue on the back of her shirt,

which would have necessarily been there if she had been |

shot from above as she laid prone on the floor. |

In addition to presenting the false shored wound

evidence from Dr. Graham, the prosecutor had used a

morgue photograph depicting the abdominal exit wound

to mislead defense expert Dr. Charles Petty at trial into

conceding Dr. Graham’s theory that the victim was shot

while on the floor:

Q. [By Mr. Moss]. Isn’t that a shored wound, a

shored exit wound here and shored wound

there?

A. [By Dr. Petty]. I can’t tell, as I indicated

from looking at the photograph before, that

this is a shored wound in the abdomen. A

shored wound refers to a wound of exit, not

a wound of entrance. And the wound in the

forearm is certainly a wound of entrance

because the bullet was recovered there.

Q. Okay. If Dr. Graham said he observed the

body, he looked at the body and if he said it

was a shored wound, you wouldn’t dis-

agree with that, would you?

A. He did not indicate that in his report. No, I

would not disagree with him had he so

indicated it.

Q. And if he said that the wound to the wrist

was consistent with the person’s left wrist

being pressed up against the person’s body

when that bullet exited the abdomen, you

wouldn’t disagree with that either?

You wouldn’t disagree with it if he said that

the left wrist - that it was consistent that

the left wrist was pressed against the chest

at the point of the exit from the chest?

A. I would not disagree with it’s consistent

with that and consistent with other things.

Q. It’s also consistent with the left wrist being

pressed up against the body with the body

laying on the floor.

A. It’s consistent with that as well as other

things, yes, sir. [T.Tr. 1567-1568.]

The shored wound was critical to the prosecution’s

case, and the prosecutor compounded the due process

violations in his closing argument to the jury:

Now we talked about, we talked about what

really happened here. What really happened

here. One thing that doesn’t lie for sure in this

case is the physical evidence. Some people may

try to lie about it, which is exactly what the

defendant did. * * * Because Dr. Graham who

doesn’t stretch the truth, said it is consistent

with her left wrist being under her body right

where the bottom of your ribs are, because it’s a

shored wound. Wounds are different as both doc-

tors told you. Even Dr. Petty said well, her wrist

had to be up against her chest. Even he would have

to admit that. But if you look at the pictures of

her and her chest in the morgue, you can see the

red around there. So she was lying down, unless

you assume, of course, after being shot a

number of times, of course, she is wandering

around like this, tucking her wrist in, pressing it

tight enough so that is supports it when the

bullet comes through. [(T.Tr. 1719-1720)

(emphasis added).]

The fabricated shored wound and the false conclu-

sion reached as a result of this fabricated evidence infec-

ted the entire proceeding with constitutional error of the

highest magnitude. The significance of the shored wound

was aptly noted by the trial judge, who stated towards

the end of trial: “You’ve talked about the shored wound

six thousand million times in this trial.” (T.Tr. 1615-1616).

2. The prosecution’s suppression of the scheme

and the resulting ineffectiveness of defense

counsel.

Prior to trial, the defense filed a motion for disclosure

pursuant to Missouri Supreme Court Rules 25.03 and

25.08. Among other things, the defense specifically

requested disclosure of “any statements of experts made ©

in connection with this particular case.” In response, and

with respect to Dr. Graham’s statements, the prosecutor

disclosed the autopsy report previously issued by Dr.

Graham, which described the abdominal exit wound as

being “clean,” but suppressed the fact that there was pre-

trial collusion and that Dr. Graham was going to contra-

dict his autopsy report at trial and testify that the fourth

shot wound was shored. Unaware of the unfolding plot,

counsel was rendered unprepared to expose the decep-

tion. This fact is especially evident from defense counsel's

cross-examination of Dr. Graham on the issue of the

shored wound:

Q. Now you were asked about the entrance

into the wrist, if this young lady were on

the floor and she was laying on her arm,

would that cause pressure on the exit

wound, the exit wound from the body

before it gets into the wrist? Do you under-

stand what I’m saying?

A. Yes, the weight of the body would press the

rib cage exit site onto the wrist.

Q. And what would that cause? What kind of a

— what would you expect that kind of pres-

sure, what effect would that have on the

exit wound and the entrance wound into

the wrist?

A. It will often cause what's called the sup-

ported exit where there is some scraping

around the edges of the exit.

Q. And did you find that?

A. Yes. [T.Tr. 1020-1021.]

During the first post-conviction hearings, trial coun-

sel testified that he knew at the time he cross-examined

Dr. Graham that the official autopsy report stated that the

abdominal exit wound was a clean wound, and that he

understood a “clean” wound to be the exact opposite of a

shored wound. (PCR Tr. 100-1001, of January 23, 1992

hearing). Counsel also testified that the shored wound

was the key evidence in support of the prosecution’s

theory that his client was guilty of murder in the first

degree. (PCR Tr. 97, of January 23, 1992 hearing). He

testified that it was his goal to disprove the shored

wound. (PCR Tr. 84, of January 23, 1992 hearing). But in

his cross-examination of Dr. Graham, trial counsel did not

question the prosecution expert’s fabricated conclusion,

but instead confirmed it:

Q. [By counsel] You were asked about the

entrance into the wrist. If this young lady

were on the floor and she was lying on her

arm, would that cause pressure on the exit

wound, the exit wound from the body

a eae ee EE eT TS

before it gets into the wrist? Do you under-

stand what I’m saying?

A. [By Dr. Graham] Yes, the weight of the body

would press the rib cage exit site on to the

wrist.

Q. And what would that cause? What kind of a

- what would you expect that kind of pres-

sure, what effect would that have on the

exit wound and the entrance wound into

the wrist?

A. It will often cause what’s called the sup-

ported exit where there is some scraping

around the edges of the exit.

Q. And did you find that?

A. Yes. [T.Tr. 1020-1021.]

When petitioner’s post-conviction hearing counsel

questioned trial counsel as to why he did not impeach Dr.

Graham with the autopsy report, trial counsel testified

that he did not want to get back into it, and have the jury

again hear about the shored wound and why the dece-

dent had been shot while on the floor. (PCR Tr. 104-105, of

April 23, 1994 hearing). But during the second hearings,

trial counsel admitted that he in fact re-emphasized this

false evidence, and that his cross-examination of Dr.

Graham was the functional equivalent of prosecuting his

own client with fabricated evidence. (PCR Tr. 90-91, of

December 8, 1994 hearing). Clearly, petitioner’s trial

counsel was constitutionally ineffective. He also failed to

present the available evidence (including that later pro-

vided by Dr. Dix) that would have corroborated defen-

dant’s trial testimony that petitioner shot his wife in self-

defense and the defense of his son. (PCR Tr. 55-56, 80, of

July 22, 1994 hearing).

The prejudicial effect of the false shored wound testi-

mony cannot be overstated. It was adduced on direct and

cross-examination of Dr. Graham, and from defense

expert Dr. Petty who had been misled by the prosecutor.

It permeated the entire proceeding, including the closing

argument of the prosecution. If the jury believed that the

defendant shot his wife as she laid helpless on the floor,

his valid defenses were destroyed, and the jury would

have been required to find him guilty as charged. That is

exactly what happened.

3. The prosecution’s conduct deprived petitioner

of any review.

Incredibly, the state trial and appellate courts disal-

lowed the petitioner any form of a hearing on the most

serious constitutional violations now before this Court.

Indeed, Mr. Moss persuaded the trial judge to grant a

motion for change of judge as of right in the state post-

conviction relief proceedings, a move the Missouri Court

of Appeals later held to be reversible error. State v. Ath-

anasiades, 857 S.W.2d 337, 341-43 (Mo. Ct. App. 1993). Mr.

Moss then convinced the transferee judge to deny peti-

tioner an evidentiary hearing on his claim concerning

subornation of perjury in connection with the “shored”

wound testimony by saying: “Do you think for a minute

that I would ever testify that I knew that I was putting on

false testimony or had somebody deliberately change

their testimony?” (T.Tr. 35-36 (December 6, 1991 Pre-hear- |

ing Conference)).

———SSSS_arn"

In its finding of fact and conclusions of law, the

(transferee) hearing court found that prosecutorial mis-

conduct was more properly reserved for direct appellate

review. Petitioner raised the subornation of perjury claim

on direct appeal. The state courts affirmed petitioner’s

convictions on direct appeal without any consideration of

this issue and remanded the case to the original (trans-

feror) trial judge for consideration of petitioner’s post-

conviction claims, but limited the claims that could be

considered to those concerning ineffective assistance of

counsel. See Athanasiades, 857 S.W.2d at 343. Thus, the

prosecutor’s actions in convincing the first (transferee)

judge not to hear the subornation of perjury claims insu-

lated them from review. Petitioner did obtain during the

second hearings, however, the evidence that demon-

strates he was convicted through the known use of false

evidence and the suppression of the false evidence.

This federal challenge to petitioner’s convictions and

sentences followed.

B. Federal Habeas Corpus Proceedings.

In 1996, petitioner filed a habeas corpus action pur-

suant to 28 U.S.C. § 2254 attacking his state conviction of

murder in the first degree and of armed criminal action,

and consecutive sentences of life imprisonment without

eligibility for probation or parole and of twenty-five

years, meted out by the Circuit Court of the City of St.

Louis. He raised in the district court all of the claims

raised in this petition.

On January 21, 2000, after more than three years

before a United States Magistrate Judge, to whom the

district court referred the matter, and after three orders to |

respondent to show cause, the magistrate judge issued a

report and recommendation calling for the denial of relief

to petitioner. (App. 4-App. 29).2 On August 28, 2000, the

district court issued its order and judgment summarily

sustaining, adopting, and incorporating the magistrate

judge’s report and recommendation, and summarily

denying all relief. (App. 2-App. 3). In conformity with 28

U.S.C. § 2253(c)(2) and Fev. R. App. P. 22(b), the district

court did not sua sponte grant or deny a COA. Petitioner

therefore interposed an application for a COA. The same

was denied on October 2, 2000. (App. 30-App. 31). A

panel of the Eighth Circuit similarly and summarily

denied appealability on December 28, 2000 (App. 1), and

the Eighth Circuit denied rehearing and rehearing en banc

on January 26, 2001 (App. 32). This petition follows.

REASONS FOR GRANTING THE WRIT

In Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974),

this Court declared: “when specific guarantees of the Bill

of Rights are involved, this Court has taken special care

to assure that prosecutorial conduct in no way imper-

missibly infringes them.” This is such a case. As indi-

cated, petitioner’s convictions resulted from corrupt

abuse of judicial process by judicial officers of the court.

2 “App.” refers to the appendix required by Supreme Court

Rule 14(i), which is bound herewith.

A Tm

The record establishes that the prosecuting attorney

conspired with the medical examiner before trial to

invent evidence in order to obtain petitioner’s convic-

tions, and, then, through misrepresentations and other

maneuvers, deprived petitioner of the ability to air his

constitutional grievances relating to the false evidence in

the trial court, the post-trial hearing courts, or on appeal.

Here, the prosecution found a way to circumvent

Brady v. Maryland, 373 U.S. 83 (1963), in keeping sup-

pressed the plot to present fabricated expert testimony,

by simply disclosing in advance of trial the expert's

report refuting the fabrication. This Court should make

clear to the courts below that such conduct violates Brady

and is not sanctioned.

Furthermore, the circumstances of this case reveal

that the courts below so far departed from the accepted

and usual course of judicial proceedings, that the exercise

of this Court’s supervisory power is required.

A. Questions 1: The Prosecution Violated Brady

By Concealing the Scheme to Present False Evi-

dence.

The record of this case reflects that, despite a timely

motion for disclosure by the defense pursuant to Brady

and the Missouri Supreme Court Rules, in which the

defense specifically requested information regarding,

inter alia, any statements of experts made in connection

with the particular case, and despite an order by the trial

court to disclose the information, the prosecutor deliber-

ately and fraudulently suppressed the scheme he had

devised with Dr. Graham to present fabricated forensic

evidence in support of the state’s false theory of prosecu-

tion. Moss did disclose the autopsy report - which

described the critical fourth shot wound as being “clean.”

He suppressed, however, the fact that Dr. Graham was

going to testify inconsistently with it.

The district court? below indicated that petitioner

failed to state a Brady claim stating that Mr. Moss “had no

obligation to disclose the testimony,” and “ ‘where the

prosecution delays disclosure of the evidence, but the

evidence is disclosed during trial, Brady is not violated,’

United States v. Gonzales, 90 F.3d 1363, 1368 (8th Cir.

1996).” (App. 13-App. 14).

Gonzales does not support the district court’s state-

ment. It was a federal drug conspiracy case. Disclosure

was governed by the Jencks Act rather than under Brady.

90 F.3d at 1369 n.4. Petitioner’s case was governed by

Brady, petitioner made a specific pretrial request for dis-

closure, and the court ordered the prosecutor to disclose.

Here, the delay of “fabricated inculpatory evidence”

which was unexpectedly introduced in the middle of the

trial rendered the defense unprepared to show it false.

In Strickler v. Greene, 527 U.S. 263, 282 n.21 (1999), this

Court made clear that even if the evidence is inculpatory

on its face, its disclosure is mandated under Brady, if it

can be used to impeach a prosecution witness. The ratio-

nale of Strickler applies here with equal vigor. Similarly,

3 The district court adopted in toto the report of the

magistrate judge. (App. 2-3). Petitioner refers herein to the

“district court” as including the magistrate judge’s report and

recommendation which the district court adopted.

in United States v. Bagley, 473 U.S. 667, 683 (1985), this

Court explained that one must evaluate a Brady claim

with a view toward how the defense could have been but

for the violation:

the reviewing court may consider directly any

adverse effect that the prosecutor’s failure to

respond might have had on the preparation or

presentation of the defendant’s case. The

reviewing court should assess the possibility

that such effect might have occurred in light of

the totality of the circumstances and with an

awareness of the difficulty of reconstructing in a

post-trial proceeding the course that the defense

and the trial would have taken had the defense

not been misled by the prosecutor’s incomplete

response.

In this case, the prosecutor’s deliberate suppression vio-

lated Brady.

Moreover, under United States v. Agurs, 427 U.S. 97,

106 (1976), even without a specific request, the prosecutor

must decide what, if anything, he should volunteer to the

defense before trial. It necessarily follows, that if - as was

the case here — there is a specific request for disclosure,

the prosecutor was obligated to disclose the information

before trial.

In finding no Brady violation, the district court relied

on the fact that counsel had the autopsy report and heard

Graham’s testimony during trial. It reasoned that counsel

had ample opportunity to cross-examine Graham and put

on his expert. (App. 13). Such analysis does not comport

with established law. What the prosecution did was not

disclosure at all; it certainly did not satisfy Brady. It was

an ambush. Petitioner had no opportunity in this case to

prepare for the false (and fabricated) inculpatory evi-

dence because of the state’s fraudulent suppression.”

Brady was violated.

At an absolute minimum, reasonable jurists, includ-

ing the reasonable jurists who decided Brady, Strickler,

and Bagley would find the district court’s rejection of

petitioner’s claim wrong or debatable. In 28 U.S.C.

§ 2253(c), as amended by the Antiterrorism and Effective

Death Penalty Act of 1996, Congress has authorized

appeals of denials of relief under 28 U.S.C. §§ 2254 and

2255 when “the applicant has made a substantial showing

of the denial of a constitutional right.”

In Slack v. McDaniel, 529 U.S. 473, 483 (2000), this

Court has recently summarized the test for granting a

COA, and has applied it to situations — like this case — in

which a denial of relief is based upon an asserted pro-

cedural default:

Where a district court has rejected the constitu-

, tional claims on the merits, the showing

required to satisfy § 2253(c) is straightforward:

The petitioner must demonstrate that reasonable

jurists would find the district court’s assessment

of the constitutional claims debatable or wrong.

The issue becomes somewhat more complicated

where, as here, the district court dismisses the

petition based on procedural grounds. We hold

as follows: When the district court denies a

habeas petition on procedural grounds without

reaching the prisoner’s underlying constitu-

tional claim, a COA should issue when the pris-

oner shows, at least, that jurists of reason would

find it debatable whether the petition states a

valid claim of the denial of a constitutional right

and jurists of reason would find it debatable

whether the district court was correct in its pro-

cedural ruling.

The reasonable jurists who decided Agurs expected

prosecutors to provide some disclosure in advance of trial

even in the absence of a request for it; in this case, the

defense had expressly requested the material — which

included Dr. Graham’s new statement that the key exit

wound was allegedly shored.

B. Question 2: Petitioner Established Cause to Lift

Any Procedural Default With Regard to His

Brady Claim as a Result of the Prosecutor’s

Conduct.

The district court found that petitioner failed to show

cause to lift a procedural bar to claims relating to the

prosecution’s fraudulent suppression in violation of

Brady, Mo. S. Cr. R. 25.03 and 25.08, and the state trial

court’s order to disclose. (App. 11-App. 14). Although

exercising due diligence, petitioner did not learn of the

bases for his Brady claim, as explained above, until years

after trial (in the post-conviction hearing after remand

concerning ineffective assistance only), and until after

petitioner was without any remedy in the state courts.

Such circumstances constitute cause under this Court’s

established precedent.

In Coleman v. Thompson, 501 U.S. 722 (1991), this

Court stated:

We explained clearly that “cause” under the

cause and prejudice test must be something

external to the petitioner, something that cannot

fairly be attributed to him: “[W]e think that the

existence of cause for a procedural default must

ordinarily turn on whether the prisoner can -

show that some objective factor external to the

defense impeded counsel’s efforts to comply

with the State’s procedural rule.”

Id. at 753 (emphasis in original; quoting Murray v. Carrier,

477 U.S. 478, 488 (1986)). Here, because the prosecutor

deliberately suppressed the fact that Dr. Graham was

going to fabricate a shored exit wound, Dr. Graham’s

testimony regarding the source and origin of this testi- -

mony came too late, and thus rendered defense counsel

unprepared to discover the falsity. The suppression not

only prevented counsel from apprising the jury of the

state’s fraud against the defendant, the court and the jury,

but also rendered counsel unaware of the fraud. The

suppression also deprived petitioner of any state court

review. Under these circumstances, the prosecutor’s

deliberate concealment constitutes a factor external to the

defense, and cause to lift any procedural default.

At a minimum, under the standards announced by

this Court discussed above, reasonable jurists would dis-

agree with the lower court’s procedural ruling on this

claim for relief, and the Eighth Circuit should have

granted a COA.

C. Question 3: The Magistrate Judge’s Assertion of

a Procedural Bar to Petitioner’s Subornation of

Perjury Claim was Erroneous.

The district court sua sponte found that petitioner

procedurally defaulted his claim for relief relating to the

prosecution’s deliberate presentation of false evidence,

because he did not timely raise it in the motion for new

trial. (App. 9-App. 10).

However, the asserted procedural rule is inadequate

for two reasons. First, it does not promote a legitimate

state interest. As this Court put it in Henry v. Mississippi,

379 U.S. 443, 447-48 (1965), “a litigant’s procedural

defaults in state proceedings do not prevent vindication

of his federal rights unless the State’s insistence on com-

pliance with its procedural rule serves a legitimate state

interest.” See also, e.g., Rickman v. Dutton, 864 F. Supp. 686,

706 (M.D. Tenn. 1994) (state “simply has no legitimate

interest in presenting false testimony and withholding rel-

evant evidence to convict [a] defendant” (emphasis

added)). o

The State of Missouri has made subornation of per-

jury a crime. § 575.040, R.S. Mo. Petitioner is not the only

victim; the state itself is a victim, as articulated in Mooney

». Holohan, 294 U.S. 103 (1935). The state can have no

interest in perpetuating the fundamental miscarriage of

justice that has been committed against one of its citizens.

See Wainwright v. Sykes, 433 U.S. 72, 91 (1977) (procedural

bar may not be interposed when fundamental miscarriage

of justice has occurred). Indeed, no state court ever relied

on the asserted procedural rule; the district court — actu-

ally the magistrate judge - did so on its own. (App. 9).

Second, in Johnson v. Mississippi, 486 U.S. 578, 587

(1988) this Court also noted that a “state procedural rule

is not ‘adequate’ unless the procedural rule is ‘strictly or

regularly followed.’ ” (citations omitted). Under Missouri

law, similar claims that were not presented in a motion

for new trial, are often reviewed on the merits under

plain error review. See State v. Weiss, 24 S.W.3d 198 (Mo.

Ct. App. 2000). Accordingly, while the rule is firmly

established, it is not regularly followed. Most signifi-

cantly, however, petitioner did present this subornation of

perjury claim to the state court on direct appeal. (Supp.

App., Vol. X at 63).4 This Court has long held that “once

the federal claim has been presented to the state courts,

the exhaustion requirement is satisfied.” Picard v. Connor,

404 U.S. 270, 275 (1971). While the state appellate court

did not address the claim, that does not matter for pur-

poses of a petitioner’s exhaustion requirements. Smith v.

Digmon, 434 U.S. 332, 333-34 (1978) (“exhaustion . . .

cannot turn upon whether a state appellate court chooses

to ignore in its opinion a federal constitutional claim”). In

the instant case, the state appeals court did not say

whether it was relying upon a state-law procedural bar or

not; it ignored the claim altogether. In sum, under the

4 Moreover, although the subornation of perjury claim was

not timely raised in a motion for new trial, petitioner

substantially complied with the requirements of the rule when,

acting pro se, petitioner filed additional suggestions in support

of the motion for a new trial raising the subornation of perjury

claim. Petitioner also raised timely the claim during allocution,

during the state post-conviction relief proceedings, and on

direct appeal. No state court ever considered the claim on the

merits or found that the claim was defaulted. The magistrate

judge, however, found sua sponte that the claim was defaulted.

LK lll

circumstances of this case, the state law ground invoked

by the magistrate judge cannot be treated as adequate.

At minimum, the reasonable jurists who decided

Mooney v. Holohan, Henry v. Mississippi and Johnson v.

Mississippi, would differ with the district court’s tolerance

of the enforcement, in federal court, of a state-law pro-

cedural bar when the effect of the official wrongdoing in

question was to conceal it from judicial scrutiny within

the time limits created by strict conformity with state law.

The reasonable jurist who decided Rickman v. Dutton,

would find not even debatable — but just plain wrong -

that a federal court would enforce a state-law procedural

bar when it did not promote the timely airing of claims

by convicted persons but, rather, “deceptive activities

which enable[ ] the State to circumvent the Constitution.”

Finally, the assertion of a procedural default for the

first time by federal magistrate judge was a violation of

the very principle of federalism for which all of the rules

of procedural default, leading to unjust results, are said

to exist. Assertion of this supposed default also violates

mandatory precedent of this Court, Harris v. Reed, 489

U.S. 255, 261-62 (1989), in that the last state court in

which the claim was presented did not rely on a pro-

cedural bar in rejecting it.

D. Question 4: Petitioner’s Claims of Ineffective

Assistance of Counsel.

1. Petitioner’s counsel was constitutionally

ineffective in failing to refute the fabri-

cated shored wound evidence, and in

failing to present critical evidence corrobo-

rating the defendant’s trial testimony.

Trial counsel failed to use the official autopsy report

previously issued by Dr. Graham in order to impeach his

fabricated expert testimony to a “shored exit wound” in

support of the prosecution’s theory that petitioner fatally

shot his wife as she laid helpless on the floor, prone. The

fabricated shored wound gutted the heart of petitioner’s

defenses. This specification of ineffective assistance of

counsel involves not only counsel’s failure to expose Dr.

Graham’s testimony as a fabrication, but also counsel’s

admission during the post-conviction hearings that he re-

elicited the same on cross-examination against his own

client, with more impetus, clarity, and prejudice than the

prosecutor achieved on direct. The district court erro-

neously rejected the claim. (App. 20-App. 21).

Trial counsel testified that he knew that Dr. Graham’s

trial testimony was squarely refuted by the autopsy

report. (PCR Tr. 90-91, of December 8, 1994 hearing). In

light of this admission by trial counsel, the petitioner has

demonstrated that counsel deprived him of a fundamen-

tal constitutional right in addition to the right to be free

from the ineffective assistance of counsel. It also deprived

him of the fundamental constitutional right to present a

complete defense.> E.g., Crane v. Kentucky, 476 U.S. 683

(1986); California v. Trombetta, 467 U.S. 479, 485 (1984);

Chambers v. Mississippi, 410 U.S. 284, 302 (1973). After the

combined violations by Mr. Moss, Dr. Graham, and trial

counsel, there was no defense at all in petitioner’s case.

In Williams v. Taylor, 529 U.S. 362, 374 (2000), this

Court reiterated the substantive standard under which

the petitioner deserved to have his claim considered:

It is, of course, well settled that the fact that

constitutional error occurred in the proceedings

that led to a state-court conviction may not

alone be sufficient reason for concluding that a

prisoner is entitled to the remedy of habeas. See,

e.g., Stone v. Powell, 428 U.S. 465 . . . (1976);

Brecht v. Abrahamson, 507 U.S. 619... . (1993). On

the other hand, errors that undermine confi-

dence in the fundamental fairness of the state ~

adjudication certainly justify the issuance of the

federal writ.

Here counsel admitted that he prosecuted his own

client, by eliciting fabricated expert testimony against

him that destroyed his defense. There can never be a

greater fundamental unfairness in a criminal proceeding.

Nor can there be an error by counsel more serious than

the one described here.

> Petitioner submits that defense counsel was truly

rendered ineffective as a direct result of the state’s fraudulent

suppression. If, however, counsel actually knew during the trial

that the autopsy report refuted Dr. Graham’s fabricated shored

wound testimony, then counsel effectively joined with the state

in the presentation of the fabricated evidence. Either way,

petitioner’s constitutional rights were violated.

2. Trial counsel failed to present critical evi-

dence corroborating the defendant's trial

testimony.

In addition, trial counsel failed to present critical

evidence that was available to him to corroborate peti-

tioner’s testimony that he fired the shots in the defense of

himself and his son. Dr. Dix’s testimony in the post-

conviction hearings, outlined above, corroborated peti-

tioner’s trial testimony and the fact that petitioner’s wife

was not on the ground when the shots were fired.

The trajectory angles of the last two shots in conjurc-

tion with the blood smeared on the hallway floor shows

that the decedent was in pursuit of petitioner during the

firing of the last two shots, and further demonstrates how

the last two shots were fired. Dr. Dix testified that the

evidence with regard to the last two shots, in conjunction

with the blood being smeared on the floor, when com-

pared to the defendant's trial testimony (T.Tr. 1320-1322,

and 1372-1376), showed that it was inconsistent with the

state’s theory of the case, while consistent with the defen-

dant’s testimony, and that it was petitioner that was

being pursued by his wife during the last two shots. (PCR

Tr. 62-66 of July 22, 1994 hearing).

Forensic pathologist Dr. Charles Petty testified dur-

ing the second post-conviction hearings that, after he

examined the scientific evidence in the case, the evidence

refuted the prosecution’s theory of the case and sup-

ported the defendant's trial testimony. (PCR Tr. 308-341 of

April 8, 1994 hearing).

In the PCR hearings on remand, even the state’s

expert, Dr. Graham, after examining the trajectory angles

of the last two shots in conjunction with other related

scientific evidence, agreed that the evidence was consis-

tent with the petitioner’s trial testimony. (PCR Tr. 187-190

of April 7, 1994 hearing).

Petitioner’s counsel was constitutionally ineffective.

At minimum, reasonable jurists could disagree about

whether petitioner’s trial counsel was ineffective. The

Eighth Circuit erred in failing to grant COA on this issue.

CONCLUSION

For all of the foregoing reasons, this petition for a

writ of certiorari should be granted.

Respectfully submitted,

Barry A. SHORT

Counsel of Record

Lewis, Rice & Fincersn, L.C.

500 N. Broadway, Suite 2000

St. Louis, Missouri 63102-2147

Telephone: (314) 444-7600

Facsimile: (314) 241-6056

Counsel for Petitioner

App. 1

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 00-3553EMSL

Michael Athanasiades, °

* Appeal from the United

Appellant, * States District Court for

vs. * the Eastern District of

Michael Bowersox, ; Missouri

, 4£:96CV730TIA

Appellee.

Before BEAM, FAGG, and HANSEN, Circuit Judges

JUDGMENT

(Filed Feb. 5, 2001)

This appeal comes before the court on appellant's

application for a certificate of appealability. The court has

carefully reviewed the original file of the district court,

and the application for a certificate of appealability is

denied. The appeal is dismissed.

(5361-010199)

December 28, 2000

A true copy.

ATTEST: /s/ Michael E. Gans

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

App. 2

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

MICHAEL ATHANASIADES _ )

aes )

Plaintiff, Cais Sie.

VS. ) 4:96CV730 CEJ

MICHAEL BOWERSOX and TIA

JEREMIAH W. (JAY) NIXON

Defendant. )

ORDER

(Filed Aug. 28, 2000)

This matter is before the Court on the petition of

Michael Athanasiades for a writ of habeas corpus pur-

suant to 28 U.S.C. § 2254.

Pursuant to 28 U.S.C. § 636(b), this matter was

referred to United States Magistrate Judge Terry I. Adel-

man. On January 21, 2000, Judge Adelman issued a

Report and Recommendation recommending that the

Court deny the petition for a writ of habeas corpus. The

petitioner has filed objections to the Report and Recom-

mendation.

Following a de novo review,

IT IS HEREBY ORDERED that the Report and Recom-

mendation of United States Magistrate Judge Terry I.

Adelman is sustained, adopted, and incorporated herein.

App. 3

IT IS FURTHER ORDERED that the motion of

Michael Athanasiades [#1] for a writ of habeas corpus is

denied.

/s/ Carol E. Jackson

CAROL E. JACKSON

UNITED STATES DISTRICT

JUDGE

Dated this 28th day of August, 2000.

App. 4

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

MICHAEL )

ATHANASIADES, )

can ) No. 4:96CV730 CEJ

Petitioner, (TIA)

V. )

MICHAEL BOWERSOX},

Respondent. )

REPORT AND RECOMMENDATION

(Filed Jan. 21, 2000)

This matter is before the Court on the petition of

Michael Athanasiades for a writ of habeas corpus. The

case was referred to the undersigned for a report and

recommendation pursuant to 28 U.S.C. § 636(b).

Procedural History

On May 20, 1989, petitioner shot his wife to death.

She sustained five bullet wounds, two of which were in

her back. Petitioner claimed that he shot his wife in self-

defense after she attacked him with a knife. On August

1 Named Respondent, Michael Bowersox is the

Superintendent of Potosi Correctional Center and is thus a

proper party respondent. 28 U.S.C. § 2254, Rule 2(a). Because

petitioner also challenges a consecutive sentence to be served in

the future, Missouri Attorney General Jeremiah W. (Jay) Nixon

should be added as a proper party respondent. 28 U.S.C. § 2254,

Rule 2(b). Future pleadings should reflect this change in the

caption.

App. 5

18, 1990, after a trial by jury, petitioner was convicted of

first degree murder and armed criminal action. The Cir-

cuit Court for the City of St. Louis, Missouri sentenced

petitioner to life without possibility of parole and twenty-

five years to be served consecutively. Petitioner is cur-

rently serving his sentences at the Potosi Correctional

Center located in Potosi, Missouri.

Petitioner filed a motion for post-conviction relief

under Missouri Supreme Court Rule 29.15. (Pet. Exh. B)

After an evidentiary hearing, the motion court denied

petitioner’s Second Amended Motion. (Pet. Exh. C) Peti-

tioner then filed a consolidated appeal in which he

appealed his conviction and the denial of his 29.15

motion. On May 11, 1993, the Missouri Court of Appeals

affirmed petitioner’s conviction and sentence. With

regard to the denial of petitioner’s motion for post-con-

viction relief, the court affirmed in part and reversed in

part and remanded with directions. State v. Athanasiades,

857 S.W.2d 337 (Mo. App. 1993). On remand, petitioner’s

29.15 motion was denied, and the Missouri Court of

Appeals affirmed. (Pet. Exh. D, E) Petitioner also filed

two Motions to Recall the Mandate, claiming ineffective

assistance of appellate counsel and prosecutorial miscon-

; duct, respectively. (First Amended Petition, p. 11; Pet.

Exh. G) These motions were also denied.

On April 16, 1996, petitioner filed a pro se petition

for a writ of habeas corpus under 28 U.S.C. § 2254 in

federal court. After retaining counsel, petitioner filed his

: first amended petition on December 6, 1996, raising five

grounds for habeas relief. On July 22, 1997, petitioner

; dismissed grounds two and four of the petition.

(1)

(3)

(5)

App. 6

Petitioner’s Claims

Petitioner’s convictions and sentences resulted

from the denial of due process of law in viola-

tion of the Fourteenth Amendment in that the

state contrived petitioner’s convictions through

the known use of fabricated evidence and per-

jured testimony and deliberately suppressed evi-

dence that would have impeached and refuted

the testimony given against him;

Petitioner was deprived of a fair trial and due

process of law in violation of the Sixth and

Fourteenth Amendments because the prosecutor

knowingly presented false serology evidence

concerning the blood on the knife seized at the

scene and failed to disclose the fact that the

knife handled was not conducive to fingerprints;

and

Petitioner was deprived of the right to effective

assistance of counsel in violation of the Sixth

and Fourteenth Amendments in that trial coun-

sel made errors so serious that the entire pro-

ceeding was rendered fundamentally unfair and

the verdict suspect, to wit:

(a) Trial counsel failed to impeach Dr.

Graham’s false expert testimony in support

of the state’s theory that petitioner’s wife

was shot while lying on the floor;

(b) Trial counsel failed to point out the absence

of gun shot residue on the back of victim’s

shirt;

argue that the evidence concerning the last

CD EARL LLG LEM SLE LODE. EEO REY SNS Ler ALMA Gt a NG ah Ak AE AIT Mg I Ni,

(d)

(e)

(f)

(g)

App. 7

shot was inconsistent with the state’s the-

ory of the case, while consistent with peti-

tioner’s testimony;

Counsel failed to present evidence and

argue that the trajectory angles of the last

two shots were inconsistent with the state’s

theory of the case while consistent with the

petitioner’s testimony that the shots

occurred while the victim was attacking

him;

Counsel allowed misleading defense expert

testimony to alter the entire evidentiary

picture and have a devastating effect on the

petitioner’s defense;

Counsel was ineffective in that he allowed

the introduction of inadmissible and highly

prejudicial evidence concerning peti-

tioner’s prior assault on his wife and their

unborn child; and

The state court erroneously applied consti-

tutional law concerning the prejudice com-

ponent of the Strickland test.

In response to the petition, respondent contends that

petitioner’s first two claims should be dismissed because

petitioner procedurally defaulted his claims in state court

and has failed to show cause and prejudice or actual

innocence to excuse such default. Further, respondent

asserts that petitioner’s claims of ineffective assistance of

counsel are without merit.

- App. 8

Exhaustion Analysis

Before the undersigned may consider the merits of

the petition for a writ of habeas corpus, the petitioner

must demonstrate that he has exhausted his state court

remedies. 28 U.S.C. § 2254(b). Here, petitioner has

exhausted all of his state court remedies by either fairly

presenting his claims to the Missouri state courts or by

procedurally defaulting on the state remedies available to

him.

Claim Cne

Petitioner first argues that his conviction and sen-

tences resulted from the denial of due process of law in

violation of the Fourteenth Amendment because the state

contrived petitioner’s convictions through the known use

of fabricated evidence and perjured testimony and delib-

erately suppressed evidence that would have impeached

and refuted the testimony given against him. This claim

contains two separate legal issues. Petitioner first con-

tends that the prosecutor knowingly used perjured testi-

mony from the coroner, Dr. Graham. He also claims that

the state failed to disclose impeachment evidence regard-

ing this witness. Respondent maintains that petitioner

procedurally defaulted on both aspects of this claim by

not raising the claim on direct appeal. Respondent thus

argues that the claim is barred from federal review.

The undersigned agrees that this claim is pro-

cedurally defaulted. While petitioner did raise this claim

on appeal, he raised it as an appeal to point qq in his

Second Amended Rule 29.15 Motion. In fact, petitioner

references this in his first ground of the First Amended

Pincus a oan a em em una nenne aaea

tet tell

App. 9

Petition for a Writ of Habeas Corpus. (Pet. p. 13) The

Missouri Court of Appeals declined to review this claim

of error relating to his post-conviction motion because

petitioner failed to plead sufficient facts to support his

contention. State v. Athanasiades, 857 S.W.2d 337, 342 (Mo.

App. 1993). This constitutes a procedural bar to review

because petitioner failed to satisfy state procedural

requirements that he plead sufficient facts to support his

claim. See Smith v. Groose, 998 F.2d 1439, 1441 (8th Cir.

1993) (finding that petitioner’s failure to plead sufficient

facts in his motion for post-conviction relief was a failure

to satisfy state procedural requirements which served as

an adequate and independent state procedural bar to

federal review).

However, petitioner claims that his first ground was

raised as a direct appeal, not an appeal of his Rule 29.15

motion. Even if the undersigned accepted this as true,

petitioner’s first claim is still procedurally barred. The

record shows that petitioner raised this claim as his sec-

ond ground on appeal. (Resp. Exh. C, p. 63) However,

this claim was not raised in petitioner’s motion for a new

trial. (See Resp. Exh. A, pp. 168-186; 191-195; 197-198;

212-213). Under Missouri Supreme Court Rule 29.11(d),

“allegations of error to be preserved for appellate review

must be included in a motion for new trial .. . ” If this

claim were reviewable at all, it would only be for plain

error. State v. Santillan, 1 S.W.3d 572 (Mo. App. 1999).

However, the Missouri Court of Appeals did not give

petitioner’s claim plain error review and instead inter-

preted it as an appeal of the motion court’s denial of

petitioner’s post-conviction motion.

App. 10

Because petitioner failed to raise either aspect of his

first claim pursuant to applicable state procedural rules,

the entire claim is procedurally defaulted. Malone v. Vas-

quez, 138 F.3d 711, 716 (8th Cir.), cert. denied, __ U.S. ___,

119 S. Ct. 384 (1998) (citations omitted); Sawyer v. Whitley,

505 U.S. 333, 338 (1992) (citation omitted). This Court may

not reach the merits of his claim unless the petitioner can

show cause and prejudice for the default or demonstrate

a fundamental miscarriage of justice. Schlup v. Delo, 513

U.S. 298, 314-15 (1995). “Establishing cause requires a

showing of some external impediment that frustrates a

prisoner’s ability to comply with the state procedural

rules.” Malone, 138 F.3d at 719. Examples of such cause

include a showing that a factual or legal basis for a claim

was not reasonably available to counsel, or that interfer-

ence by officials makes compliance impracticable. Murray

v. Carrier, 477 U.S. 478, 488 (1986) (citation omitted). The

miscarriage of justice exception applies only in extraordi-

nary cases, particularly if a constitutional violation

resulted in the conviction of an innocent person. Murray,

477 U.S. at 496; Schlup, 513 U.S. at 327. This standard

requires petitioner to persuade the court that in light of

new evidence no juror would have found him guilty

beyond a reasonable doubt. Schlup, 513 U.S. at 329; Perry

v. Norris, 107 F.3d 665, 666 (8th Cir. 1997).

The miscarriage of justice exception requires peti-

tioner “to support his allegations of constitutional error

with new reliable evidence - whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or

critical physical evidence — that was not presented at

trial.” Schlup, 513 U.S. at 324. The Supreme Court noted

}

App. 11

in Schlup that claims of actual innocence are rarely suc-

cessful because of this type of evidence is usually

unavailable. Id.

Petitioner asserts that he can show cause and preju-

dice for his procedural default.2 With regard to both

aspects of his claim, that the prosecutor knowingly used

perjured testimony of Dr. Graham and that he failed to

disclose impeachment evidence regarding Dr. Graham in

violation of Brady, petitioner argues that he obtained new

evidence that was discovered during the second post-

conviction hearings. Specifically, petitioner states that Dr.

Graham revealed that he met with the prosecutor, Nels

Moss, shortly before trial to review the photographs of

the victim’s body taken at the scene. Dr. Graham and Mr.

Moss discussed issues such as the position of her body

during the shots, the “shored” exit wound, and whether

the victim was shot while lying on the floor. Petitioner

further asserts that Dr. Graham revealed that Mr. Moss

was aware that Dr. Graham would testify inconsistently

with the autopsy report, despite that fact that Mr. Moss

testified during the hearings that he was not aware that

Dr. Graham would testify to the finding of a “shored”

versus a “clean” exit wound.

Dr. Graham’s autopsy report revealed that the fatal

shot was a clean wound. However, he testified during

trial that the wound was shored, which could possibly

indicate that the victim was shot while lying prone on the

floor. (Pet. Exh. L., p. 1004) He admitted, however, that

2 In order to properly address petitioner’s cause and

prejudice arguments, some discussion of the merits will be

necessary.

App. 12

there were other possibilities regarding her body position

when shot. (Pet. Exh. L., pp. 1004-1005; 1011) He later

testified that he reached this conclusion from a photo-

graph taken at the scene, but that he still believed that all

indications were that she was shot while lying down

based upon a number of factors. (Pet. Exh. R, pp. 158-59;

Exh. S, p. 40)

Respondent asserts that petitioner had all the neces-

sary evidence to impeach Dr. Graham at the time of trial.

The undersigned agrees that petitioner had the autopsy

report, and he heard the testimony of Dr. Graham. To the

extent that these were inconsistent, petitioner’s counsel

had the opportunity to cross-examine Dr. Graham. Fur-

ther, petitioner had his own expert to refute the testimony

of Dr. Graham. (Pet. Exh. N, pp. 1507-1516; 1527-1615) Dr.

Petty testified that the nature of the exit wound and the

shirt the victim was wearing did not support the state’s

theory that the victim was lying down when shot. (Pet.

Exh. N, pp. 1533-1537)

Petitioner’s theory that Dr. Graham gave false testi-

mony and later recanted does not rise to the level of

evidence not available to petitioner at the time of trial.

Dr. Graham’s testimony was consistent at all of the hear-

ings. He testified during the April hearing that he

believed during trial that the photo reflected a “shored”

wound at the time of the incident and that the scrape may

have vanished by the time he performed the autopsy

because the edges of the wound began to dry. (Pet. Exh.

R, pp. 157-158) Upon further reflection four years later,

after observing a greatly enlarged photograph of the

wound, he may have expressed some doubts. However,

he was still “not convinced it’s not there ...” (Pet. Exh. S,

ae LEA A VRS ws A INFO Hoo

App. 13

p- 22) Dr. Graham maintained throughout that he

believed at the time of trail that the photograph depicted

a shored exit wound. (Pet. Exh. R, pp. 157-59; Exh. §S, p.

22) He further consistently indicated that his conclusion

that the victim was possibly shot while lying down was

based on other evidence aside from the shored exit

wound. (Pet. Exh. Exh. R, pp. 159, 164, 173-175; Exh. S,

pp. 40-41) Accordingly, Dr. Graham did not later retract

his testimony as petitioner submits. Therefore, petitioner

has not provided this Court with information that was

not available to counsel at the time of trial, and he is

unable to demonstrate cause. See Bowman v. Gammon, 85

F.3d 1339, 1345 (8th Cir. 1996) (finding “factual basis of

[petitioner’s] claim concerning the autopsy evidence was

reasonably available to him at the time of trial. Thus,

[petitioner] should have presented this claim to the state

court.”)

With regard to his Brady argument, again petitioner

cannot demonstrate cause. He maintains that the infor-

mation that Dr. Graham was going to testify contrary to

his autopsy report was not readily available to counsel

and should have been disclosed under Brady v. Maryland,

373 U.S. 83 (1963). Petitioner had the information at the

time that he should have filed a motion for new trial. He

had the autopsy report, and he heard the testimony of Dr.

Graham. He had ample opportunity to cross-examine Dr.

Graham and to put on his own experts. Further, the

prosecutor had no obligation to disclose the testimony.

The government is required to provide defendant with

any evidence in its possession which is favorable to the

defendant and which is material to the guilt or innocence

of the defendant or to punishment. Brady, 373 U.S. at 87.

App. 14

This includes evidence which may be used to impeach the

testimony of government witnesses. United States v.

Bagley, 473 U.S. 667 (1985). However, in the instant case,

the impeachment evidence was the autopsy report, which

petitioner had in his possession. In addition, the fact that

the witness was going to testify contrary to his report was

revealed at trial. “Where the prosecution delays dis-

closure of evidence, but the evidence is nonetheless dis-

closed during trial, Brady is not violated.” United States v.

Gonzales, 90 F.3d 1363, 1368 (8th Cir. 1996). Because peti-

tioner has not demonstrated that the basis of either aspect

of his first claim was not readily available to counsel such

that counsel was unable to comply with state procedural

rules, has not established cause. As such, prejudice need

not be discussed. Asker v. Class, 152 F.3d 863, 871 (8th Cir.

1998) (citations omitted). Therefore, petitioner’s first

ground should be dismissed.

Claim Three

Petitioner claims as his third ground that Petitioner

was deprived of a fair trial and due process of law in

violation of the Sixth and Fourteenth Amendments

because the prosecutor knowingly presented false serol-

ogy evidence concerning the blood on the knife seized at

the scene and failed to disclose the fact that the knife

handle was not conductive to fingerprints. Respondent

again argues that the petitioner is procedurally barred

from advancing this claim in federal court and that peti-

tioner cannot demonstrate cause and prejudice or actual

innocence to overcome this bar.

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App. 15

The undersigned agrees that petitioner is pro-

cedurally barred from presenting this claim in federal

court. Similar to his first claim, discussed in detail above,

petitioner did not raise this claim in his motion for a new

trial. Instead, he raised it in his motion for post-convic-

tion relief. On appeal, the Missouri Court of Appeals

determined that this claim was not properly before the

court.

Petitioner can overcome the bar by demonstrating

cause and prejudice or actual innocence. Here, the peti-

tioner claims that he is able to show cause and prejudice

and actual innocence such that this court should review

the merits of his claim. First, petitioner asserts that the

state’s alleged failure to disclose the fact that the knife

handle was not conducive to fingerprints was a factor

external to the defense. Also, petitioner claims that he

could not have discovered this evidence earlier, as the

evidence was disclosed during the post-conviction hear-

ings on remand. Further, petitioner argues that he is

actually innocent in that the evidence demonstrated that

petitioner shot his wife in defense of himself and his

child.

With regard to the serology testing, petitioner claims

that the criminologist, Donna Becherer, testified that she

could not retrieve enough blood on the knife to test it.

However, petitioner states that she later testified during

the post-conviction hearings that she did conduct a serol-

ogy test which indicated that blood was present on the

knife which matched the victim’s blood type.

Review of the post-conviction hearing transcript

reveals that she testified consistent with her trial

App. 16

testimony that there was not enough blood on the handle

to type. (Pet. Exh. R, p. 125; Pet. Exh. L, p. 1048) During

the hearings, Ms. Becherer did state that she attempted to

type the blood on the handle and could only get enough

blood to perform an Adenylate Kinase-1 test. She stated,

however, that 99% of the Caucasian population are type

1. (Pet. Exh. R, p. 126) Therefore, contrary to petitioner’s

assertion that the criminologist admitted that “she typed

the blood from the knife and that it matched the victim’s

blood,” Ms. Becherer testifed that the only test she could

perform resulted in a match with 99% of all Caucasians.

This is not deliberately suppressed evidence which

would establish cause as the petitioner submits.

Additionally, this information does not meet the

actual innocence standard. First, this is not new evidence.

Petitioner had Ms. Becherer’s pretrial report. Further,

there is no showing that no reasonable juror would have

convicted petitioner if the jury had known that the blood

type matched the victim’s and 99% of the Caucasian

population. Ms. Becherer testified that in the photos she

observed, there was “blood on the arm and the hand has

a lot of blood on it.” (Pet. Exh. L, p. 1049) However, the

knife had only a smear of blood. It was legitimate for the

jurors to conclude that the victim was not holding a knife

when she was shot.

With regard to petitioner’s assertion that Officer

Laux also gave false testimony regarding the blood on the

knife, the undersigned finds that petitioner cannot over-

come the procedural bar. Officer Laux testified that he

found hand prints and finger prints of blood on the door

jambs. Also, her right hand was covered with thick blood.

(Pet. Exh. K, pp. 685-86; 696) He further testified that she

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App. 17

was shot in the right arm and bleeding down her arm as

she proceeded through the hall, yet there was no blood

on the knife except a small smear on the handle. (Pet.

Exh. K, pp. 750-51). This evidence is not inconsistent with

any of the subsequent testimonies. As such, there is no

new evidence pointing to petitioner’s innocence, and this

Court is precluded from reading the merits of this aspect

of petitioner’s third claims.

With regard to the petitioner’s contention that the

state suppressed evidence that the knife handle was not

conducive to fingerprints, the undersigned finds that

petitioner has not demonstrated cause and prejudice or

actual innocence. There is nothing to indicate from the

petitioner’s pleadings or from the transcripts that Officer

Laux testified to the jury regarding the lack of finger-

prints. While petitioner points to the police report which

stated no fingerprints were found, there is no indication

that the jury saw this report or even knew that the

victim’s fingerprints were not found on the knife. Thus,

the fact that Officer Laux later testified that the handle

was not conducive to fingerprints (Pet. Exh. R, p. 48) is

not new evidence exonerating the petitioner. There is

simply no evidence that the jury relied on this informa-

tion to make its decision to convict, or that, given Officer

Laux’ testimony during the 29.15 hearing, they would

have believed that petitioner killed his wife in self-

defcnse. Because petitioner cannot demonstrate cause

and prejudice or a miscarriage of justice, his third claim

for habeas relief should be denied as procedurally barred.

App. 18

Claim Five

As his fifth and final claim, petitioner alleges that he

was deprived of the right to effective assistance of coun-

sel in violation of the Sixth and Fourteenth Amendments

in that trial counsel made errors so serious that the entire

proceeding was rendered fundamentally unfair and the

verdict suspect. The undersigned will address each speci-

fic point in turn.

First, petitioner argues that trial counsel failed to

impeach Dr. Graham's false expert testimony in support

of the state’s theory that petitioner’s wife was shot while

lying on the floor. In Strickland v. Washington, 466 U.S. 668

(1984), the United States Supreme Court stated that a

petitioner claiming ineffective assistance of counsel must

establish that his counsel’s performance was deficient

and that the deficient performance prejudiced his

defense. Id. at 700. In establishing the requisite element of

prejudice, the petitioner must show that the decision

reached would likely have been different absent the error.

Id. at 694; Griffin v. Delo, 33 F.3d 895, 900 (8th Cir. 1994).

To determine whether counsel’s performance was

deficient, the inquiry must be whether, in light of all

circumstances, the identified acts or ommissions were

outside the range of professionally competent assistance.

Strickland, 466 U.S. at 690. Because a habeas petition

claiming ineffective counsel involves mixed questions of

law and fact, legal conclusions are reviewed de novo, and

state court findings of fact are presumed to be correct

under 28 U.S.C. § 2254(d). Sloan v. Delo, 54 F.3d 1371, 1383

(8th Cir. 1995) (citing Laws v. Armontrout, 863 F.2d 1377,

1381-82 (8th Cir. 1988) (en banc)).

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App. 19

The Missouri Court of Appeals reviewed this claim in

* petitioner’s Rule 29.15 motion. The court found the fol-

lowing:

Here, the record reveals that on cross-examina-

tion, counsel got Dr. Graham to admit that the

last two bullet wounds inflicted upon victim

were consistent with her being shot while stand-

ing, which supported the appellant’s theory of

self-defense. Furthermore, at the post-conviction

hearing, Dr. Graham testified that whether or

not the wound was “shored” was not the sole

basis for his opinion that victim was lying down

when shot. Instead, he testified that his opinion

was primarily based upon the fact that victim

received a gunshot wound [sic] to the back, the

bullet exited the front of her chest, and went

into her wrist. . . . Here, trial counsel got Dr.

Graham to admit that the entry of the last two

bullet wounds were consistent with appellant’s

theory of self-defense, and as a result, his cross-

examination was reasonable under the circum-

stances, and the findings and conclusions of the

motion court are not clearly erroneous.

(Pet. Exh. E, p. 11)

The factual findings of the state court are presumed

to be correct. The court determined that petitioner’s

attorney got the coroner to admit that the entry of the last

two bullet wounds were consistent with the petitioner’s

theory that he shot his wife in self-defense. Indeed, the

record reflects that Dr. Graham testified on cross-exam-

ination that there were many possible scenarios regarding

what position the victim was in when shot. Further, peti-

tioner’s attorney elicited testimony that it was possible

for people to engage in physical activity after sustaining a

App. 20

potentially lethal wound. (Pet. Exh. L, pp. 1011-1014) This

supports the petitioner’s theory that he shot his wife as

she attacked him with a knife.

The record shows that petitioner’s attorney was not

deficient, as required by Strickland. He asked the coroner

questions regarding other possible positions that the vic-

tim could have been in when shot. He got Dr. Graham to

admit that he was not telling the jury that the victim was

laying down when shot, only that it was one of several

possibilities. Petitioner’s attorney was setting the stage

for his own expert who would testify that it was impossi-

ble for petitioner’s wife to have been shot while lying

down. While he testified during the post-conviction

motion hearings that a portion of his questioning reaf-

firmed the state’s position (Pet. Exh. T, p. 91), he also

testified that it is his theory to concentrate on the fear

aspect, not the ballistics, in a self-defense case. (Pet. Exh.

T, p. 106) In addition, counsel testified that he did not see

any need to let the coroner repeat the State’s position that

the victim was shot on the floor because Dr. Graham had

stated that it was a mere possibility. Further, counsel

stated that he had his own witness to refute Dr. Graham’s

testimony (Pet. Exh. P, p. 113)

The undersigned finds that this was trial strategy and

was not deficient performance as petitioner submits.

“Under Strickland, there is a strong presumption that an

attorney’s performance is professionally reasonable... .

Moreover, Strickland holds that decisions related to trial

strategy are virtually unchallengeable.” Bowman v. Gam-

mon, 85 F.3d 1339, 1345 (8th Cir. 1996) (citing Strickland v.

Washington, 466 U.S. 668, 689, 690 (1984)). “Reasonable

trial strategy does not constitute ineffective assistance of

pela kate Bag ioh and ale Sere aie Som

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App. 21

counsel simply because it is not successful.” James v. State,

100 F.3d 586, 590 (8th Cir. 1996) (citations omitted). Like-

wise, petitioner was not prejudiced by this defense. Dr.

Graham testified that there were a number of scenarios

regarding the victim’s position when she was shot. He

also stated that the shored exit wound was not the only

evidence that led him to believe that the victim was

laying on the floor when shot. There is no indication that

petitioner was convicted on the basis of the shored

wound and that if his attorney had impeached him with

the report, the jury would have believed self-defense and

rendered a different verdict. Thus, petitioner’s first claim

of ineffective assistance of counsel should be denied.

Petitioner next asserts that counsel was ineffective

because he failed to point out the absence of gun shot

residue on the back of the victim’s shirt. The Missouri

Court of Appeals found:

In the underlying trial, Becherer testified

that she had examined victim’s shirt and had

not found any gun residues on the back of it.

She also testified that test-firings of appellant’s

gun produced a visible vaporous residue pattern

at a distance of nine inches but not at fifteen

inches. At the postconviction hearing, she testi-

fied that partially burnt gunpowder flakes from

ammunition like that used by appellant trav-

elled up to forty-two inches during testing.

However, she also testified that gunpowder

flakes can very readily fall off if the cloth is

moved.

Here, the record reveals that victim’s body

and clothing were moved after her death and

App. 22

before Becherer’s tests, and soot and gun-

powder flakes may have fallen off of her body

and clothing. As a result, trial counsel was not

ineffective for his failure to argue that the lack

of soot and gunpowder flakes contradicted the

State’s theory of the case, and the finding and

conclusion of the motion court is not clearly

erroneous.

(Pet. Exh. E, p. 13)

The factual findings are entitled to a presumption of

correctness. Petitioner’s attorney testified that the lack of

gun residue did not necessarily contradict the State’s

position. (Pet. Exh. P, pp. 117-120) Petitioner’s attorney

also testified that he was concentrating on the fear of

petitioner, not the ballistics of the case. He stated that

“ ...I was more concerned about showing the fear in the

defendant and that he fired irrespective of what position

she was in. She was attacking him and he isn’t sure when

he’s out of danger. And I have found that you have more

luck with the self-defense theory when you leave it at

basic self-defense, fear.” (Pet. Exh. P, pp. 102)

Again, this is trial strategy. As previously stated,

these decisions are virtually unchallengeable. This deter-

mination was reasonable, as there is no showing that the

absence of gunpowder flakes contradicted the state’s the-

ory. Given the fact that this information would not neces-

sarily have aided the petitioner’s case, there is no

showing of prejudice. Petitioner’s second point should

also be denied.

For his third point, petitioner argues that counsel

failed to present evidence and argue that the evidence

concerning the last shot was inconsistent with the state’s

App. 23

theory of the case, while consistent with petitioner’s testi-

mony. Petitioner contends that his attorney failed to pre-

sent evidence that the fifth shot was not shored and did

not occur while the victim was lying on the floor.

The state court addressed this issue, finding that two

of the experts, Dr. Dix and Dr. Graham, presented testi-

mony that was consistent with the state’s theory. Both

doctors testified at the postconviction hearing that the

blood pattern could be consistent with the victim lying

down when shot. Therefore, the court found that peti-

tioner’s attorney was not ineffective for failing to pursue

this. (Pet. Exh. E, pp. 13-14) Respondent argues that Dr.

Dix later concluded, however, that to a scientific cer-

tainty, the victim was not on the floor when she received

the last two shots. (Pet. Exh. S, p. 80)

The findings of the state court are presumed to be

correct. Further, the record demonstrates that Dr. Dix did

testify at the hearing that the blood could be consistent

with the victim lying down, as a photograph of the victim

revealed blood flowing down to the side of her body

toward the floor. (Pet. Exh. S, pp. 67-68) In addition,

petitioner’s attorney presented expert testimony from Dr.

Charles Petty stating that the exit wounds were not

shored and that the victim did not receive any gun shots

while lying on the floor. (Pet. Exh. N, p. 1533) Because

petitioner’s attorney did make this argument and did

elicit testimony corroborating petitioner’s story, his con-

duct was not deficient as required by Strickland. The court

need not address prejudice. Strickland, 466 U.S. at 699.

Petitioner’s third argument that his counsel was ineffec-

tive should therefore be denied.

App. 24

As his fourth point, petitioner argues that his trial

attorney failed to present evidence and argue that the

trajectory angles of the last two shots were inconsistent

with the state’s theory of the case while consistent with

the petitioner’s testimony that the shots occurred while

the victim was attacking him. The Missouri Court of

Appeals addressed this point, finding:

Here, appellant’s expert, Dr. Dix, testified that

the different trajectories could be explained by

movement of appellant or victim between shots.

Furthermore, he testified that it was possible the

victim could have continued to move even after

being shot several times because adrenaline

sometimes allows people to act under condi-

tions that they otherwise would not be able to.

Therefore, even if trial counsel had presented

evidence of the trajectory of the bullet wounds,

it would not have destroyed the State’s theory

that victim was lying down when shot. As a

result, the motion court did not clearly err in

concluding that the proposed evidence would

not have altered the outcome of the trial.

(Pet. Exh. E, p. 12).

Again, the findings of fact are presumed to be cor-

rect. Further, contrary to petitioner’s opinion, the shored

exit wound was not the only evidence supporting the

state’s theory that the victim was shot while lying on the

floor. Dr. Graham testified at trial and during the hear-

ings that there were a number of factors considered,

including the blood, as previously discussed, the position

of the body, the fact that a bullet was found in her shirt,

and the trajectory of the bullets. (Pet. Exh. S, pp. 40-41;

Exh. R, pp. 183-184) In fact, Dr. Graham stated during the

Nec eSibilospesengss

App. 25

postconviction hearings that the shored wound made no

difference as to his opinion that the wound was consis-

tent with the victim being on the floor when shot. (Pet.

Exh. R, p. 190; S, p. 40)

Furthermore, while Dr. Graham, Dr. Dix, and Dr.

Petty all testified that the trajectories of the fourth and

fifth bullets could be consistent with the victim being

shot while standing, they also stated that there were

other explanations, such as movement of the victim or

petitioner between shots to account for the different tra-

jectories. (Pet. Exh. S, pp. 61-64; 72-73; 187-190; Exh. R,

pp. 336-338; 368-369) Thus, the state court is correct in

stating that testimony regarding the trajectories would

not have destroyed the state’s case in favor of the peti-

tioner’s case. Counsel exercised sound trial strategy in

emphasizing the self-defense aspect of the case instead of

the ballistics, which would not necessarily have aided the

petitioner’s case. As previously stated, trial strategy is

virtually unchallengeable. The undersigned finds that

counsel’s actions in this regard were reasonable and that

the outcome of the case would not have been different if

he had pursued evidence regarding the bullet trajectories.

Therefore, the fourth point in petitioner’s ineffective

assistance of counsel argument should be denied.

Fifth, petitioner maintains that counsel allowed mis-

leading defense expert testimony from Dr. Petty to alter

the entire evidentiary picture and have a devastating

effect on the petitioner’s defense. The Missouri Court of

Appeals addressed this point, finding that choice of wit-

nesses is a matter of trial strategy and will not support an

ineffective assistance of counsel claim. (Pet. Exh. E, p. 14)

Further, the court determined that counsel sent Dr. Petty

App. 26

photographs, police reports, laboratory reports, evidence

technician reports, and medical examiner reports. In

addition, counsel spoke with Dr. Petty on the phone and

met with him in St. Louis. The court also determined that

“Dr. Petty’s testimony during cross-examination sup-

ported appellant’s theory that he was engaged in a strug-

gle with the victim. This conflicted with the State’s theory

that victim was shot while lying on the floor.” (Pet. Exh..

E, p. 15) Finally, the record indicated that trial counsel

did not want Dr. Petty to testify because he had a conde-

scending attitude and would make a bad impression on

the jury, but that counsel put him on the stand at the

insistence of his client. The court held that counsel’s

performance was reasonable and that petitioner failed to

show that the outcome of the trial would have been

different. (Pet. Exh. E, p. 15)

The undersigned agrees with this analysis. According

to counsel, petitioner insisted on putting Dr. Petty on the

stand, despite counsel’s advice that the jury may not like

the witness. Counsel met with Dr. Petty and discussed

the case prior to trial; however, he believed that the

_ doctor’s testimony did not help petitioner’s case. Peti-

tioner insisted that the defense call Dr. Petty as a witness.

(Pet. Exh. R, pp. 250-251) Further, counsel testified that he

sent Dr. Petty everything he wanted to know about the

case and discussed the self-defense theory with him. (Pet.

Exh. 253-254).

As petitioner admits, choice of witnesses is a trial

strategy. As previously stated, trial strategy is virtually

unchallengeable. Further, it was through petitioner’s

insistence that his attorney put Dr. Petty on the stand.

(Pet. Exh. R, p. 276) Petitioner cannot now claim that his

PA MAO > Redan heltd pn, Re Sve weet vr

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App. 27

attorney was ineffective for honoring his wishes. There-

fore, the fact that counsel put Dr. Petty on the stand as a

defense witness was not unreasonable, and prejudice

need not be discussed. Petitioner’s fifth point should

therefore be denied.

For his sixth claim petitioner argues that counsel was

ineffective in that he allowed the introduction of inad-

missible and highly prejudicial evidence concerning peti-

tioner’s prior assault on his wife and their unborn child.

The state court determined that appellant had insisted

that counsel cross-examine the witness regarding this

matter against counsel’s advise. (Pet. Exh. E, p. 10) The

court found that the impeachment attempts were not

unreasonable. (Id.)

The undersigned agrees that counsel’s actions were

not unreasonable. He testified that petitioner insisted that

he cross-examine Eleni Zavredinos, and so he complied

with petitioner’s demands. (Pet. Exh. P. pp- 90-91) This

again is trial strategy made at the behest of petitioner. He

cannot now claim that it was bad Strategy because the

outcome was not as he desired. James, 100 F.3d at 590.

Thus, petitioner is unable to demonstrate that his attor-

ney’s performance fell below the standard of reasonable-

ness or that the outcome would have been different had

Eleni not been cross-examined on that issue. Therefore,

petitioner’s sixth point of ineffective assistance of counsel

should be denied.

Finally, petitioner claims that the state court erro-

neously applied constitutional law concerning the preju-

dice component of the Strickland test. Petitioner maintains

that hte [sic] court should have employed a cumulative

App. 28

effect test in assessing the prejudice resulting from coun-

sel’s alleged errors.

The record shows that the Missouri Court of Appeals

properly applied the Strickland analysis when reviewing

petitioner’s claims of ineffective assistance of counsel. In

most instances, the court found that counsel’s actions

were reasonable, and therefore, the court did not need to

address prejudice. When the court did address the preju-

dice component, it determined whether “there is a rea-

sonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694.

Petitioner's argument that the prejudicial aspect

should be viewed cumulatively has been rejected in this

circuit and this district. Wainwright v. Lockhart, 80 F.3d

1226, 1233 (8th Cir. 1996); Roberts v. Bowersox, 61 F. Supp.

2d 896, 940 (E.D. Mo. 1999). The Eighth Circuit Court of

Appeals has expressly held that “[e]rrors that are not

unconstitutional individually cannot be added together to

create a constitutional violation. . . . Neither cumulative

effect of trial errors nor cumulative effect of attorney

errors are grounds for habeas relief.” Wainwright, 80 F.3d

at 1233 (citations omitted). This Court will comply with

the directives of the Eighth Circuit. The state court and

the undersigned have applied the proper Strickland anal-

ysis and determined that petitioner did not receive inef-

fective assistance of counsel. Therefore, petitioner’s final

point should be denied.

a a a te

App. 29

Accordingly,

IT IS HEREBY RECOMMENDED that the petition of

Michael Athanasiades be DISMISSED without further

proceedings.

IT IS FURTHER RECOMMENDED that all pending

motions be DENIED as MOOT.

The parties are advised that they have eleven (11)

days in which to file written objections to this Report and

Recommendation pursuant to 28 U.S.C. § 636(b)(1),

unless an extension of time for good cause is obtained,

and that failure to file timely objections may result in a

waiver of the right to appeal questions of fact. See

Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).

/s/ Terry I. Adelman

TERRY I. ADELMAN

UNITED STATES

MAGISTRATE JUDGE

Dated this 21st day of January, 2000.

App. 30

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

MICHAEL ATHANASIADES, )

Movant,

v. ) No. 4:96CV730

UNITED STATES OF AMERICA, ) (CEJ)

Respondent.

MEMORANDUM AND ORDER

(Filed Oct. 02, 2000)

This matter is before the Court on the application of

Michael Athanasiades for a certificate of appealability

pursuant to 28 U.S.C. § 2253. This Court denied Ath-

anasiade’s motion to vacate, set aside, or correct sentence

pursuant to 28 U.S.C. § 2254 in an order filed August 28,

2000. Because Athanasiades has failed to make a substan-

tial showing of the denial of a constitutional right, a

certificate of appealability will be denied. See Cox v.

Norris, 133 F.3d 565, 569 (8th Cir. 1997) (substantial show-

ing requires that “issues are debatable among reasonable

jurists, a court could resolve the issues differently, or the

issues deserve further proceedings”).

Accordingly,

PLEASE SE NEA DRIED ea LRU ME DR

App. 31

IT IS HEREBY ORDERED that the motion for a

certificate of appealability [# 65] is denied.

/s/ Carol E. Jackson

CAROL E. JACKSON

UNITED STATES DISTRICT

JUDGE

Dated this 2nd day of October, 2000.

App. 32

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT |

No. 00-3553

Michael Athanasiades, .

Appellant, :

vs. * Order Denying Petition

* for Rehearing and for

* Rehearing En Banc

Appellee. *

Michael Bowersox, Warden,

(Filed Jan. 26, 2001)

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

(5128-010199)

January 26, 2001

Order Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

App. 33

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, DC 20543-0001

WILLIAM K. SUTER AREA CODE 202

CLERK OF THE COURT 479-3011

March 29, 2001

Mr. Barry A. Short

Lewis, Rice & Fingersh

500 N. Broadway, Ste. 2000

St. Louis, MO 63102

Re: Michael Athanasiades

v. Michael Bowersox, Superintendent,

Potosi Correctional Center, et al.

Application No. 00A842

Dear Mr. Short:

The application for an extension of time within which

to file a petition for a writ of certiorari in the above-

entitled case has been presented to Justice Thomas, who

on March 29, 2001, extended the time to and including

June 25, 2001.

This letter has been sent to those designated on the

attached notification list.

Sincerely,

WILLIAM K. SUTER, Clerk

By /s/ Loretta S. Ruffin

Loretta S. Ruffin

Assistant Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.