Appendix — Roper v. White

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conclusions of law. After reviewing the record and considering

the parties’ arguments, the Court grants in part and denies in

part the application for a Wnt of Habeas Corpus.

L_ BACKGROUND

The crime occurred in the early morning hours of January

6. 1987. The evidence supporting the verdicts was summanzed

by the Missouri Supreme Court as follows:

Defendant went with his friend Roger Buckner to the

home of the victims, Don Wright and Caro! Kinney.

Also present was the third victim, Ernest Black, a guest

in the home.

The purpose of defendant's visit was to obtain “crack”

cocaine. Wright had previously promised to get the

cocaine and sell it to White. When defendant and

Buckner arrived they discussed the crack deal with

Wright. During the discussion Cleveland Ford, another

of White's friends, came into the house unannounced

through the back door and claimed to be associated with

defendant and Buckner. At that point, the three

purported drug buyers drew guns. Defendant put his

gun to Wright's head and asked him where he kept the

money and drugs. Wright said there were no drugs or

money in the house. Defendant and his companions

then tied up Wright, Black, Kinney and Kinney’s two

children, apparently with extension cords. The

assailants beat Wnght and Black with their guns, al] the

while unsuccessfully interrogating them about where the

money and drugs could be found.

According to the witnesses’ testimony, White declared

that the three adults should die. Ford held up Wnght’s

head while defendant slit his throat. Buckner then cut

Kinney's throat repectedly. slicing her jugular vein.

Defendant. Buckner, and Ford then turned on the gas

stove. extinguished the pilot lights. and left the

apartment. Whrght died from strangulation and

asphyxiation. Black and Kinney survived this vicious

attack and later identified White, Buckner, and Ford as

their attackers.

State v, White, 813 S.W.2d 862, 863-64 (Mo. 1991) (en banc),

cert. denied, 502 U.S. 1103 (1992) (“White I”).

The primary evidence against Petitioner at trial was the

testimony of Kinney and Black — the surviving victims of the

attack. Early in her direct examination, Kinney testified that

Petitioner was one of the three individuals who came to the

house she shared with Wright, and that the other individuals

were Roger Buckner and a man with the last name of “Ford.”

T.Tr. at 593.°. She testified that she had been using crack

cocaine daily for the past six months, T.Tr. at 595, and that she

had been smoking crack the night of January 5 and the morning

of January 6. T.Tr. at 596. She explained that she arrived at the

house her brother (Ben Kinney, hereinafter “Ben™) shared with

his girlfriend and his girlfriend's mother at approximately 7:00

p.m. on the night of the fifth and, along with five or six other

people, smoked crack. T.Tr. at 598-99, 601. Wright, Black,

and Black’s girlfriend were among the other people present.

T.Tr. at 601-02.’ At approximately midnight, Black drove

Wright and Kinney, along with Kinney’s sons, Black's

girlfriend and Black's brother (Earl) to the house Wright and

Kinney shared. T.Tr. at 603. She put her kids to bed,

whereupon the adults resumed smoking crack. T.Tr. at 604. At

Kinney’s request, Black and Wright returned to her brother's

*“T Tr. at____” is a reference to the wial transcript.

*Kinney’s sons. Deonta and Raymond (ages eight and seven, respectively)

were also there. but were in another room and not taking drugs. T.Tr. at 601.

house to try to get some money, but the effort failed. Later.

Black and Wnght took Black’s girlfriend and Earl home. and

later still returned to Ben’s house to try to get some money.

Approximately forty-five minutes after they came back from

this latest trip somebody knocked at the back door by the

kitchen. T.Tr. at 606-07. Kinney answered the door and

encountered two men she did not know who were looking for

Wright. T.Tr. at 608. While answering the door, she observed

a blue van parked outside the house. T.Tr. at 632. Earlier,

Wright had indicated he was expecting some visitors, and he

admitted the men into the house. T.Tr. at 609. Kinney testified

Petitioner was one of the two men to enter the house, T.Tr. at

610, and she noticed that he had a solid gold tooth on the mght

side of his mouth. T.Tr. at 612-13. She also indicated that

Buckner looked familiar and thought he knew her brother.

T.Tr. at 663-64.

The visitors and Wright began discussing a drug transaction.

T.Tr. at 610. At some point during the conversation someone

slammed open the back door and entered the house. T.Tr. at

614. Kinney recognized this third visitor as someone she had

seen at a club several years ago but did not recall his name at

that time. He told Kinney he was with Petitioner and Buckner.

T.Tr. at 615. As Kinney returned to the front room and sat on

the couch, Petitioner and Buckner_drew their guns and

Petitioner asked Wright “where the dope was.” T.Tr. at 616.

After Wnght denied having any drugs, Petitioner began hitting

him on the head with the gun and kicking him, and kept

demanding to know where the drugs and money were. T.Tr. at

617-19. Eventually, Petitioner and Buckner began beating

Black as well. T.Tr. at 620.

At one point, Petitioner told Buckner to get something with

which to tie up Wright, and Buckner located an extension cord.

They tied Wright's knees and hands together and continued

questioning him. When Wnght continued to deny having any

answers for his attackers. Petitioner took an extension cord and

wrapped it around Wright's neck, choking him. T.Tr. at 621-

22. When this failed to kill Wnght. Buckner made Kinney get

on the floor and used her belt

and some tape to tie her hands and legs. T.Tr. at 623.

Petitioner declared that “[{a}!]] three of them die.” T.Tr. at 624.

Buckner went into the kitchen and returned with a kitchen

knife. Kinney saw Ford grab Wright's head and hold it back

while Petitioner cut Wright's throat. T.Tr. at 626-27. Buckner

then made Kinney go into a bedroom. After some debate, he

then took the knife from Petitioner and cut Kinney’s throat from

behind. T.Tr. at 630. The men left soon thereafter.

Kinney’s sons contacted the police, and she was taken to the

hospital for surgery. She subsequently spoke to the police and

was shown five photographs and identified State's Exhibit 102

as a photograph of the man who cut her neck: the picture was of

Roger Buckner. T.Tr. at 637-38. In March 1987, the police

showed her some additional photographs and she identified

State’s Exhibit 112 as a photo of the third man who had come

to her house (Ford). T.Tr. at 639. The following day, she

picked Ford out of a lineup. T.Tr. at 641-43. Finally, in May

1997 she viewed a videotaped lineup (State's Exhibit 132) anc

identified Petitioner as one of the men at her house. T.Tr. at

644-45. She did not recall whether the police ever showed her

photographs at any other time while she was in the hospital, nor

did she rec2}] how many other occasions the police came to the

hospital to talk to her, but she did recall giving a videotaped

Statement at the police station. T.Tr. at 638. On cross-

examination, she also disavowed any memory of identifying

another individual who was never charged. T.Tr. at 650.

There is no evidence that Petitioner's photograph was ever

*Kinney was in a bedroom, so she didn't know who cut Black. Black had

passed out before being cut, so he didn't know who cut him. T.Tr. at 874.

shown to Kinney prior to her picking him out of the videotaped

lineup. Finally, prior to concluding her direct testimony,

Kinney was shown three other photographs, one of which

(State's Exhibit 121) was a photograph of Christopher (A.J.)

Constantine; Kinney testified that none of the people in those

three photographs were at her house that night. T.Tr. at 645-

46.

On cross-examination, Kinney was asked about her

descriptions of the men. She testified that she told detectives

Petitioner was “a black male in his late 20's, five-nine to five-

ten, about 170 pounds” and that none of the thee men spoke

with a Jamaican accent. T.Tr. at 658. She did not recall telling

them that Petitioner had a gold tooth. T.Tr. at 658-59. Upon

further questioning about the additional photos (including

Constantine's), Kinney admitted that she knew Constantine to

be a drug dealer and that she knew of someone named “A.J.”

but denied knowing him personally. T.Tr. at 679-80. She also

denied telling either her brother or Black that Constantine was

one of the men at her house. T.Tr. at 680-81. Petitioner's tnal

attorney also asked questions demonstrating Kinney’s prior

drug use. T.Tr. at 669-75.

Black also testified about his prior use of crack cocaine.

T.Tr. at 841-42. His testimony about the events of the evening

and early morning surrounding the attack substantially mirrors

Kinney’s testimony. He confirtned Kinney’s testimony about

a blue van outside her house. T.Tr. at 861-62. He knew

Buckner and in fact had seen him earlier that evening when he

and Wright had returned to Kinney’s brother's house the first

time. T.Tr. at 853. Buckner indicated he was looking for some

crack and Wnght indicated he could get him some and told him

‘The Index of Exhibits appearing at the frort of the Trial Transcript

(specifically, page XII) identifies State's Exhibit 121 as a “Photo of A.J.

Chnstopher Constantine.” See also T.Tr. at 897 (Petitioner's counsel

describing State's Exhibit 121 as a picture of Constantine).

to come over to his house later. T.Tr. at 855-56. He recognized

Buckner as the first person to enter Kinney’s house but had

never seen the second man before. He described the second

man as “probably about five-nine. five-ten, probably about | 60.

and he had a beard, a full beard. and moustache and dark ~ well,

not real dark skin. He was dark skinned.” T.Tr. at 863. Unlike

Kinney, he testified that the second man wore a green, red and

white stocking cap. Compare T.Tr. at 66} with T.Tr. at 863.

Upon viewing Petitioner at trial, Black testified that he looked

like “the man that came in with [Roger] Buckner.” T.Tr. at 890.

On cross-examination, Black denied knowing anyone by the

r-ame of A.J. Constantine or Christopher Constantine. T.Tr. at

895. Upon being shown State’s Exhibit 121 (Constantine's

picture), Black conceded that he had “some of the same

characteristics” as the second man. T.Tr. at 896. He denied

previously telling anyone that Constantine was the second man,

and denied assertions that Kinney had identified Constantine as

the second man. T.Tr. at 924, 932. Black was never explicitly

asked if Constantine was the second man, but he insisted that

Petitioner was the second man. T.Tr. at 953-56. He also denied

that the second man spoke with an accent. T.Tr. at 938-39, 955.

Other witnesses linked Petitioner to Buckner, Ford and the

crime; still other witnesses confirmed Kinney’s and/or Black’s

identifications and rebutted defense counse!’s attempt to cast

doubt on the validity or consistency of those identifications.

Officer Mark Hatcher arrested Buckner (pursuant (o an arrest

warrant) on April 11, 1987. Buckner was found hiding in a

closet in his girlfriend's apartment. A search of the premises

uncovered a wallet containing Petitioner's driver’s license and

social security card. T.Tr. at 713. Officer Carl Kegler

confirmed that when Kinney saw the lineup with Petitioner in

it she “immediately recognized him as one of the assailants that

had been in the house that night she was stabbed and Mr.

Wright was killed... .” T.Tr. at 720. Detective John Peterson

testified that he examined Petitioner for distinguishing

characteristics shortly following his arrest and that at that time

Petitioner had “one solid gold tooth and two open-faced tooths

and one of them had three diamonds in it.” T.Tr. at 729.

Detective Edward Glynn testified that on January 12, 1987,

he went to the construction site where Buckner worked in an

attempt to find Buckner when he picked up his paycheck. T.Tr.

at 740-41]. By the time he arrived, Buckner’s check had been

picked up by someone in a black Cadillac. The Cadillac’s trek

away from the site was observed by a police helicopter unit, and

Detective Glynn was thus directed to a residence in

Independence, Missouri. Upon arriving, he found the black

Cadillac parked outside. Petitioner was inside the residence.

T.Tr. at 741-43. Petitioner voluntarily went to the police station

with Detective Glynn, where he was briefly interviewed (by

someone other than Detective Glynn) and photographed (by

Detective Glynn). T.Tr. at 742-43.° Detective Glynn explained

that Petitioner was not a suspect at that time, but was asked to

go downtown because it appeared that he had picked up

Buckner’s check and it was unknown what part, if any, he

played in the murders. T.Tr. at 745, 747.

Detective Clarence Gibson visited Kinney at the hospital the

day of and the day after the attacks. She identified Buckner out

of a photo array but failed to pick Constantine’s picture out of

a different array. T.Tr. at 752-54. Detective Gibson also

testified that he interviewed Petitioner when Detective Glynn

brought him to the station. Petitioner told him he had loaned

the Cadillac to an acquaintance named Larry Thomas (whose

address he did not know) for the purpose of picking up

*Detective Glynn had no knowledge as to whether Petitioner's photograph

was shown to Kinney when she was interviewed the next day. T.Tr. at 747.

Other witnesses denied that this occurred, and nobody testified to the

contrary. The photograph taken by Detective Glynn was State's Exhibit 117.

T.Tr. at 750.

Buckner’s check. Petitioner admitted knowing who Buckner

was and that Buckner was “on the.run™ but denied knowing

where he was hiding. T.Tr. at 755-56.

Detective Gibson confirmed that he talked to Kinney after

he interviewed Petitioner, and she told him the man who

entered with Buckner had a gold tooth. T.Tr. at 757.’ He

testified that he showed Kinney another photo array on January

18, 1987 that did not include a picture of either Buckner, White

or Ford, and Kinney failed to positively identify anyone in that

array. T.Tr. at 758. He showed her an array on March 15,

1987, and she identified anyone Ford as the third man. Up to

this point in time, Detective Gibson had not shown Kinney

Petitioner's picture, T.Tr. at 757, 759, 782-83 -- in fact. up to

this point in time he did not even know that the police had

Petitioner's picture. T.Tr. at 771-72.

One of Buckner’s co-workers (Earl Wells) testified that he

lived across the street from Buckner, regularly rode to work

with him, and often saw Petitioner at Buckner’s house. T.Tr. at

958-60, 965. Buckner owned a white Plymouth or Pontiac, but

the last time they rode together Buckner drove a black Cadillac

that he had seen Petitioner driving in the past. T.Tr. at 960-61.

On the night of January 5," he saw Petitioner drive Buckner’s

white car to Buckner’s house and knock on the door. T.Tr. at

968-70. Eventually, Petitioner got back in Buckner’s car and

drove off; Buckner went back into his house. T.Tr. at 970.

Later, Buckner drove off in the black Cadillac. T.Tr. at 971.

*Kinney’s statement was videotaped. T.Tr. at 757.

‘Although Wells could not testify as to the precise date, the date can be

deduced based on Wells’ other testumony from James Brown (Wells and

Buckner’s employer) and Officer Car] Kegler (who went to the construction

site and talked to Wells).

Detective Lee Floyd testified that he interviewed Kinney’s

sons. He showed Raymond (the younger child) a photo array

that included pictures of Buckner and Constantine. but the boy

did not identify anyone in the array. T.Tr. at 988-89. Deonta

viewed the same array and indicated that he recognized

Constantine, although Detective Floyd testified that Deonta did

not actually identify Constantine as being there that might. T.Tr.

at 989-90.

Raymond was one of Petitioner's two witnesses in the guilt

phase; at the time he was ten years old. He testified that one of

the men that visited his house that night “talk{ed] funny.”

When asked what kind of voice he understood that to be,

Raymond said it was a “Jamaican accent.” T.Tr. at 999. He

also testified that he had a chance to see that man’s face, and

Petitioner was not the man who spoke with a Jamaican accent.

T.Tr. at 999-1000. However, when a series of photographs

(including State’s Exhibit 121, Constantine's photo), Raymond

denied that any of them looked familiar. T.Tr. at 1000-01.

Deonta did not testify.

IL_DISCUSSION

The Court will address all of the issues Petitioner has raised,

regardless of whether or how they have been previously

rejected. This will insure that the disposition of all of

Petitioner’s claims is documented in one place and avoid

confusion about the basis for the Court’s rulings on the various

issues.

_Ineflective Assi ‘Trial C I: Voir Di

Part |

This claim attacked the manner in which counsel conducted

voir dire. The Court previously denied relief on this claim, and

the Eighth Circuit affirmed in the second appeal. White v.

Luebbers. 307 F.3d 722, 727-29 (8 Cir. 2002). cert. denied.

538 U.S. 981 (2004).

B. Informin ors About Governor's Power

to Pardon

The Court rejected this claim on the merits in its first Order

and declined to include the issue in the Certificate of

Appealability. In its first opinion, the Eighth Circuit held there

was no need to reconsider claims that had already been

addressed on the merits, White v. Bowersox. 206 F.3d 776, 783

(8 Cir.), cert. denied, 531 U.S. 917 (2000), and the Eighth

Circuit’s second opinion does not require reconsideration of

those claims. Accordingly, this claim is rejected.

ive Assi 7 - Failure to Rai

Caldwell Objection

This argument alleges that counsel was ineffective for

failing to raise the objection discussed in the preceding section.

This claims was rejected on the merits in the Court’s first order,

wherein the Court observed that the objection in question was

not meritorious so counsel could not be ineffective for failing

to assert it. This is merit-based determination that the Eighth

Circuit did not require to be re-examined.

D. Incflectiv ; Trial C I; Fail

Request Removal of Juror Ruth Tuggle

The claim was previously denied on the merits, and the

Eighth Circuit affirmed. White v. Luebbers, 307 F.3d at 729-

30.

E. ial of Right to

This claim alleged that Petitioner's mght to a fair and

impartial jury was denied because Juror Tuggle was not

removed. This claim was denied on the merits. and the Eighth

Circuit's discussion of the preceding issue affirms this Court's

ruling.

Failure to Appeal Improper Removal of Juror for Cause

This claim was previously denied on the merits, and the

Eighth Circuit affirmed in the first appeal. White v. Bowersox.

206 F.3d at 782.

Fail bj eT

During the small-group voir dire, Venirewoman Brson

(who was number 33 on the panel) discussed her concerns and

hesitations about voting in favor of the death penalty. T.Tr. at

276-77, 284. The prosecutor's motion to strike her for cause

was denied. T.Tr. at 298-91. Petitioner contends that the

prosecutor “slipped” her onto a list of jurors who had been

removed for cause, and counsel's failure to remedy this error

constituted ineffective assistance of counsel. In its two previous

Orders, the Court denied this claim because it was procedurally

defaulted ang on the merits. Arguably, the discussion of the

merits was di¢ta, so in an abundance of caution the Court will

set forth its ruling on this issue.

The relevant portion of the transcript reflects the following

discussion:

Prosecutor #1: Judge, we have enough, if we want to save

a bunch of time, | think both parties would

agree we could excuse — | think there were

eleven, is that nght?

Prosecutor #2: = Eleven people on sequestration

Prosecutor #1: That should take us down to 40

| venirepersons].

The Court: Well, if we're going to do that by

agreement, | have no objection to that. So if

I have the right list. that's [venirepersons]

23, 25, 27, 20, 46, 33, 69, 45, 73, 90 and 92.

Prosecutor #]: | That's what our numbers show.

Prosecutor #2: _—‘| think it’s 42. Judge.

The Court: That's what | started to question. That looks

more like a 4 than it does a 9. Yes. Carder.

| had the name down. 42. Well, I'm not

going to do that unless it's by agreement.

Defense Counsel: I'm just checking, Judge. I'll agree to it.

The Court: Do you understand, Mr. White?

Defendant: [nods head]

The Court: You have no objection to it?

Defendant: No, sir.

T.Tr. at 493-94. This discussion demonstrates that this list was

not offered as a list of potential jurors that had been struck for

cause; it was a list of jurors the two sides mutually agreed could

be struck because of their answers regarding sequestration. The

Court made clear that absent the agreement. these jurors would

not be struck. (Interestingly, the fact that Defendant's tial

counsel made the agreement was itself offered as a ground for

relief in the Second Amended 29.15 Motion. See L.F. at 28.).

* Nobody on this list was struck for cause. See T.Tr. at 245-50,

273-74, 291-92, 307, 321, 340-41, 365, 384, 389, 401, 413-14.

434, 444 (portions of transcript referencing jurors who were

stuck for cause).

Voir Dire. Par I

This argument is closely related to the one addressed in

Section II(A), and as noted in that discussion it was affirmed in

the second appeal.

Throughout these proceedings, Petitioner has posited that he

has been mistakenly identified and that Constantine was

actually the person who entered Wrght’S house with Buckner

and participated in the murder. Constantine, a native of

Jamaica, was convicted in 1989 of conspiring to distribute

narcotics. Petitioner has alleged a myriad of means by which

this theory could have been proven, but not all of these means

were presented at the January hearing. These avenues'’ cannot

“Separate Legal Files (indicated by “L.F. at___") were created each time

this case was remanded to the state tnal court. The Court's references to the

Legal File will be to the one bearing Number 78459, which appears as

Respondent s Exhibit BB in this Court's file.

“The Court will offer two examples. Counsel's failure to mterview

Constantine cannot be evaluated because Constantine's testimony was not

procured for the hearing. Counsel's failure to present tesumony from Joyce

Williams (Petitioner's sister) cannot be evaluated because, while her

affidavit was submitted, she did not testi fy at the hearing. See Section II(Q),

infra

be considered because there is no record as to the evidence that

could have been obtained. The Court will address only those

avenues of investigation that were presented at the hearing or

are properly in the record.

This argument is presented as a claim of ineffective

assistance of counsel, which is governed by the standard set

forth in Strickland v. Washington. 466 U.S. 668 (1984). “This

standard requires [Petitioner] to show that his ‘trial counsel's

performance was so deficient as to fall below an objective

standard of reasonable competence, and that the deficient

performance prejudiced his defense.” Nave v. Delo, 62 F.3d

1024, 1035 (8 Cir. 1995) cert. denied, 517 U.S. 1214 (1996)

(quoting Lawrence v. Armontrout, 961 F.2d 113, 115 (8" Cir.

1992)). This analysis contains two components: a performance

prong and a prejudice prong.

Under the performance prong, the court must

apply an objective standard and “determine

whether, in light of all the circumstances, the

identified acts or omissions were outside the

wide range of professionally competent

assistance.” Strickland, 466 U.S. at 690,

while at the same time refraining from

engaging in hindsight or second-guessing of

trial counsel’s strategic decisions. Id. at 689.

Assuming the performance was deficient, the

prejudice prong “requires proof ‘that there is

a reasonable probability that, but for a

counsel’s unprofessional errors, the result of

the proceeding would have been different.’”

Lawrence, 961 F.2d at 115 (quoting

Strickland, 466 U.S. at 694).

Id. Failure to satisfy both prongs is fatal to the claim. Pryor v.

Norris, 103 F.3d 710, 713 (8 Cir. 1997) (stating there is no

need to “reach the performance prong if we determine that the

defendant suffered no prejudice from the alleged

ineffectiveness”). “[T]o establish prejudice. a ‘defendant must

show that there is a reasonable probability that. but for

counsel's unprofessional errors. the result of the proceeding

would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”

Wiggins v. Smith. 123 S. Ct. 2527, 2542 (2003) (quoting

Stnckland. 466 U.S. at 694). Assessing prejudice requires the

Court to reweigh the evidence of guilt against the totality of

but for violations of Stnckland‘s performance prong. See Siers

\. Weber, 259 F.3d 969, 974 (8" Cir. 2001), cert. denied, 534

U.S. 1138 (2002) (citing Strickland, 466 U.S. at 695).

Some of the issues raised under thes heading justify issuing

the writ, while others do net. The Court will address these

categories separately.

L_tssues Justifving Issuance of the Writ

Robert Duncan (who passed away in 1996) was lead

counsel. and two to three weeks before tnal he asked John

O'Connor to second chair the tral. Hrg. Tr. At 60-61; Hrg. Tr.

At 70, 82-83.'' O'Connor originally was not expected to do

anything more than take notes, but his role expanded over time.

Hrg. Tr. At 71. Duncan did not utilize procedures for deposing

witnesses, did not informally interview the witnesses, and unti!

O'Connor became involved Duncan did not even have copies

of the depositions taken in connection with Buckner’s trial.

Hrg. Tr. at 24, 74, 84. The State treated the case as an “open

file.” meaning the copies of all police reports are made and

provided to defense counsel, Hrg. Tr. at 22. and opportunities

'“Hre Tr At” is a reference to the transcript of the hearing held

before this Court in January 2004

to view and obtain copies of photographs videotapes were

provided. Hrg. Tr. at 34. Duncan did not obtain copies of the

photographs and videotapes used in the investigation. although

he may have viewed them in the prosecutor's office. Hrg. Tr.

at 78. Duncan obtained and viewed the police reports before

O'Connor became involved in the case. Hrg. at 85. 89.

Counsel did not attend Buckner’s trial and the record is silent

as to whether counsel had a transcript of the trial because the

question was never asked. See Hrg. Tr. at 77, 85-87.

Kinney’s sons, Deonta and Raymond, testified in Buckner's

trial. and Deonta identified Constantine as one of the men

present. Both boys were also deposed prior to Buckner’s trial.

Raymond testified that he awoke upon hearing a loud noise,

woke his brother, and saw three men in the front room that were

not present when the boys went to sleep. Buckner Tr. at 743."

He identified one of the men as a person he knew to be “A.J.”

and said he spoke with a Jamaican accent. Buckner Tr. at 746-

48. Deonta testified that he saw “A.J.” sleeping at his uncle's

house; he had never seen him before but his uncle (Ben) told

him the man’s name. Buckner Tr. at 788. Deonta later

confirmed that the assailants (including “A.J.”) had been at his

uncle's house earlier that evening. Buckner Tr. at 794. Two of

the men tied up the boys but neither was the “chubby” man

described as “A.J.” Buckner Tr. at 797-98. “A.J.” later came

to the bedroom to quiet the boys, but when Deonta started to cry

he hit the child on the head four times. Buckner Tr. at 798-99.

Deonta identified State’s Exhibit 121 — a picture of Constantine

~ aS a picture of “A.J.,” Buckner Tr. at 799, but Raymond

failed to identify the same picture. Buckner Tr. at 778. Deonta

also testified that “A.J.” spoke with a Jamaican accent. In their

depositions, Raymond identified the “chubby” man as having

the name “A.J. or Ajax, one of those” and Deonta testified

about the “chubby” man, saying “I think his name was A.J.”

“Buckner Tr. at___” is a reference to the transcript of Buckner’s trial.

The police report indicated that Deonta had identified

Constantine from a photo array and identified him as “A.J.”

As noted. Raymond testified at Petitioner's tnal. Consistent

with his earlier testimony, Raymond failed to identify

Constantine as a person who was present at the murder scene,

but he was not asked if he knew the “chubby” man to be “AJ.”

as he had testified in his deposition. More inexplicably. Deonta

did not testify. The Court cannot comprehend why, of the two

brothers, counse! opted to call the one who had never identified

Constantine's photo when (1) the theory of defense was that

Petitioner was being mistakenly identified in Constantine's

stead and (2) the other brother had consistently identified

Constantine. There was no harm in calling Raymond, as he

would have been able to confirm much of Deonta’s testimony;

the problem 1s the failure to call Deonta. Raymond's testimony

was of little value without Deonta’s testimony More

importantly, Deonta’s testimony directly implicated Constantine

and exculpated Petitioner. Deonta’s identify was known to

counsel, a reasonable investigation would have revealed his

identification of Constantine as the man who entered with

Buckner, and no plausible explanation has been offered as to

why Deonta could not or should not have been called.

Coupled with this failure is the failure to call Dorothy

Merrell (“Dorothy”) to testify. Gwen Merrell was Ben’s

girlfmend; Dorothy was Gwen’s mother and she lived with Ben,

Gwen and Gwen's children. Crack was sold from the house by

both Ben and Dorothy. During her testimony,'’ Dorothy

identified Constantine's picture as a person she knew as a

Jamaican drug dealer who went by the name of “Jay” or “A.J.”

She considered him dangerous because he had threatened to kill

Kinney ’s brother when he had used some of “A.J.’s” drugs

“Dorothy's testimony was submitted at the January 2004 by way of

deposition. the Court has reviewed both the transcnpt and the videotape of

that deposition.

instead of selling them. She further testified that Buckner and

“A.J.” came to the house looking for drugs on January 5 when

Kinney and Wright were present. Wright told the men that he

had drugs at his house and they could come over later to get

some. Buckner and “A.J.” left the house shortly after Kinney

and Wright. declaring that they were going to get some drugs

Dorothy also testified that she had never seen Petitioner at her

house. While Dorothy's testimony conflicts with Kinney's and

Black's in certain key respects, this is of no consequence; it is

no surprise that a criminal defendant might present evidence

that conflicts with the prosecution's evidence. The Court's

concern is the lack of justification for failing to call Dorothy

Her testimony places Buckner and Constantine together shortly

before the crime, and describes circumstances that led to

Buckner’s and Constantine's departure to Wright's house.

Dorothy's potential for having information was known to

counsel, because there was information im the police reports

establishing that she was home on January 5 and 6.

The failure to call these witnesses to the stand violated the

performance prong. Having adopted a theory of mistaken

identification, and having suggested to the jury that a particular

person was the real culprit, the failure to call witnesses who

could directly support that theory fell below the range of

professional competence. Presenting this testimony may have

changed the outcome, so the failure to call these witnesses also

prejudiced Petitioner’s defense. None of these witnesses or

potential witnesses are overwhelmingly compelling. The

State’s witnesses were under the influence of crack and have

provided slightly contradictory descriptions of the events and

the assailants. Deonta was a young child, which may be a

negative factor in his credibility. In addition, of the four

eyewitnesses (including Raymond), only Deonta identified

Constantine as the man with Buckner. Dorothy was not an

eyewitness to the crime, and her credibility may be suspect

given that she was a crack dealer. There is evidence connecting

Buckner and Petitioner, but Dorothy's testimony also connected

Buckner and Constantine. Uvtimately, the Court is not

confident in the jury's verdict and believes there is a reasonably

possibility that the outcome would have been different had

Deonta and Dorothy testified.

> _Jsswes That Do Not hustify Issuance of the Writ

Petitioner contends his attorney should have elicited

testimony from Frank Johnson. Johnson testified that he knew

Petitioner because he was incarcerated with him in 1987 or

1988. Hrg. Tr. at 153-54; 169. He also knows of other

members of Petitioner's family. Hrg. Tr. at 155-58; 162-65.

He identified and confirmed the statements in his previously-

prepared affidavit in which he averred that shortly after the time

of Don Wright's murder he was riding on a Metropolitan

Transportation Service van and overheard a woman who

identified herself as Carol Kinney talking to the driver. The

woman and the driver appeared to be frends. She told the

driver that “a Jamaican named A.J. had broken into her house

and killed her boyfriend.” Later, while incarcerated in the

Jackson County jail, Johnson “ran into” Petitioner and, after

talking with him, realized the importance of the woman's

Statement. However, there is no evidence that Johnson knew

Kinney, or that the speaker actually #as Kinney. The Court is

empowered to make a credibility fim@ing, and finds Johnson's

testimony to be implausible — and that is before one considers

the unusual circumstance of Johnson's visit to the workplace of

other witnesses involved in this case, Hrg. Tr. at 143-44, which

the Court credits despite Johnson's denials. Finally, separate

and apart from these issues, Petitioner offers no explanation as

to how his attorneys should have known that Johnson had

“information” relevant to this case. The Court concludes that

the failure to discover this “witness” did not violate Stickland's

performance prong. and the testimony would have been so

useless and incredible that its absence did not result in

prejudice.

Charles Ross was an investigator for Buckner’s attorneys.

He interviewed Black, and in his affidavit Ross declares that

Black told him Kinney said one of the three men involved in the

murder went by the street name of “A.J.” Ross did not testify

at the January hearing. The Court cannot accept Ross’ affidavit

as evidence of what Black would say because the affidavit itself

is hearsay, and its description of Black's statements constitutes

another level of hearsay. It might reasonably be contended that

the affidavit should have caused Petitioner's counsel to pursue

the matter with Black, but at trial Black was specifically asked

whether he remembered “Caro! telling you at the hospital that

one of the men was “A.J.” and he denied that this happened.

T.Tr. at 924. Later, counsel discussed Ross’ investigative

report with Black, and he again denied saying Kinney told him

one of the men was A.J. T.Tr. at 930-32." Counsel was

precluded from using Ross's report to impeach Black because

the statement was not prepared or adopted by Black.

Ultimately, there is no violation of either of Strickland's prongs.

Petitioner submitted a deposition of Gwen Merrill in lieu of

her live testimony at the January 2004 hearing. She could

‘sstify generally to a connection between Buckner and

Constantine, but had no information about the day in question.

She could also testify that she had never see Buckner with

Petitioner, but she did not testify that she was in the house on

January 5 or 6 at the times Petitioner was allegedly there so the

testimony is of questionable value. Gwen's testimony lends a

modicum of support to both her mother’s testimony and

Petitioner's theory in establishing a connection between

Buckner and Constantine, and there would have been no harm

in presenting it; however, standing alone it is not particularly

“Kinney also denied making the statement. T.Tr. at 68!

strong evidence and the Court concludes the failure to present

it did not prejudice Petitioner's defense.

Petitioner contends that Black's brother. Earl. should have

been called to testify that he did not know Petitioner, but that he

did know Constantine. The reasoning is based on a theory that

the person with Buckner acknowledged Black as Earl's brother.

but this is far from clear. Kinney testified that Buckner told the

man with him that Black was Earl's brother, and his companion

responded by saying “Oh, yeah? Get in here and lay down on

the floor.” T.Tr. at 620. Kinney provided virtually identical

information to the police in an interview following the attacks.

This statement is too vague to qualify as proof that the second

person knew the men were brothers, much less proof that Earl

knew the second person.”'* The Court concludes there was no

prejudice from counsel's failure to elicit this testimony from

Earl.

Finally, Petitioner contends Duncan's failure to take

depositions prior to trial constituted ineffective assistance. The

Court declines to rule that failure to depose witnesses in a

criminal case is per se ineffective assistance. The Court

acknowledges that most attorneys believe it best to conduct

depositions, particularly in a case that hinges upon eyewitness

identification. This does not mean, however, that the

Constitution requires it to be done. Duncan chose, for strategic

reasons, not to take depositions because he did not want to alert

witnesses and prosecutors to his questions. Hrg. Tr. at 75.

Depositions are largely an investigatory tool, and for Stickland

purposes, the failure to take one should be viewed in concert

with whatever other steps were taken to investigate the case.

Assuming a constitutionally adequate investigation, the decision

whether to take a deposition to “lock in” testimony or to eschew

Petitioner also points to a statement from Black's deposition in Buckner's

case. but the statement only establishes that Buckner knew the men were

brothers.

the opportunity to avoid alerting others to counsel's thoughts

and tactics becomes a question of strategy that is unreviewable

under Stnckland.

Nothing said in this Order should be construed as

determining that these items of evidence should not be pursued

in the event this case is retried. The Court simply holds the

failure to present these items did not violate the constitutional

guarantee of effective assistance of counsel.

ee ee ; Mitigating Evid

Counsel presented no evidence during the penalty phase.

This was due to a complete lack of planning: Duncan was so

confident the jury would acquit that he never developed a plan

for the penalty phase of the trial. Hrg. Tr. at 93-94, 117-18; see

also Hrg. Tr. at 79-80, 98, 114. The failure to plan for such a

critical phase of the proceedings cannot be justified and clearly

violates the performance prong. constitutionally competent

counsel does not fail to develop a plan for the penalty phase of

a capital trial.

The Court finds ample evidence existed that could have

been presented on Petitioner's behalf in the penalty phase of

Mr. White's trial. Olen Barber, the supervisor of the Arapahoe

County Jail, testified that Petitioner was helpful in diffusing

tensions resulting froin an overcrowding problem. He praised

Petitioner's involvement in a program called ACAP, Arapahoe

County Awareness Program. Petitioner demonstrated strong

leadership, assisted inmates with problems, and was very

beneficial to the jail staff. Among Barber's duties was the

preparation of adjustment and conduct reports for the court. and

he rated Petitioner as “excellent.” Barber also sent a letter to

the judge in Petitioner's case. This was a rare occurrence, but

he considered Petitioner's work to be “above and beyond

norma! behavior.” In his letter he wrote:

| would like to report that [Petitioner} has

continued to maintain excellent demeanor. He

has contributed many hours assisting the jal

staff with problem inmates.

{Petitioner} has used his leadership abilities

very effectively to keep the tension levels

down during the overcrowded conditions of

the jail during the past year. And | have no

means by which to estimate the number of

inmates that he has helped during his stay

here. but I have received several letters from

inmates expressing their appreciation for his

help.

Petitioner was also instrumental in the establishment of a drug

and alcohol rehabilitation program at the jail.

Bret Dillingham, a licensed clinical social worker, did an

extensive study of Petitioner's life history, called a psychosocial

history. Dillingham testified that Petitioner's home

environment contained “risk factors” that elevated his “isk for

“bad outcomes” in adolescence and adulthood, his family was

impoverished, his father suffered from alcoholism and was

abusive to Petitioner, Petitioner's mother and Petitioner's

siblings, and there was a family history of criminal activ» and

substance abuse.

Members of Petitioner's family testified at the January 2004

hearing: Mildred Patterson, Petitioner's aunt; Kareem and

Doug Williams, his nephews, Lucille Duncan, his sister, and

Amelia (Mia) Duncan, his niece. These family members

supported Dillingham's psychosocial history and findings.

They also testified about Petitioner's importance in their lives.

Respondent dismisses this potential evidence. characterizing

it as “not impartial” and criticizing the absence of any evidence

minimizing. rebutting, or addressing Wnght’s murder or

demonstrating any remorse on Petitioner's part. Respondent

also characterizes Dillingham’s testimony as being subject to

cross-examination. These observations are largely correct, out

they do not demonstrate an absence of prejudice. To credit

Respondent's position would be tantamount to declaring that

there was a certain category of evidence Petitioner was required

to present in order to avoid the death penalty, or that the jury

was obligated to impose the death penalty, but neither

proposition is true. Petitioner was permitted to present, and if

presented the jury was obligated to consider, any relevant

evidence bearing on the suitable punishment. E.g., Sumner v.

Schuman, 483 U.S. 66, 75-76 (1987). A jury is never required

to impose the death penalty; it may be persuaded by mercy,

compassion, residual doubt, or a host of other factors in

determining whether a murderer should be sentenced to death,

and the State cannot preclude a jury from considering

information regarding those factors. The need for

individualized sentencing, as well as the concept of mercy and

compassion at the sentencing phase, are well-established in

Supreme Court precedent.

A process that accords no significance to

relevant facets of the character and record of

the individual offender or the circumstances of

the particular offense excludes from

consideration in fixing the ultimate

punishment of death the possibility of

compassionate or mitigating factors stemming

from the diverse frailties of humankind. It

treats all persons convicted of a designated

offense not as uniquely individual human

beings, but as members of a faceless,

undifferentiated mass to be subjected to the

blind infliction of the penalty of death

Woodson v. North Caroling. 428 U.S. 280, 304 (1976); see also

Monge v. California, 524 U.S. 721, 734 (1998), Clemons v.

Mississippi, 494 U.S. 738, 748 (1990): Lockett v. Ohio, 438,

U.S. 586, 604-05 (1978).

Nobody can predict what the jury would have decided if it

had been presented with the information described above. The

jurors may have still voted in favor of the death penalty. On the

other hand, there is a reasonable possibility that at least one

juror, motivated by compassion or mercy, would have voted for

life imprisonment. Death is not an automatic or required

sentence, and appeals to compassion, mercy and conscience are

sometimes sufficient to sway the outcome. The complete

absence of any evidence at the penalty phase deprives the Court

of any confidence in the outcome, and there is a reasonable

possibility that a different decision would have been rendered

but for counsel's performance. Cf Wiggins, 123 S. Ct. at 2542-

44,

K. Eight ) Violation E ack of Mitigat

Expenence

In an argument related to the preceding sev on, Petitioner

argues counsel's failure to present mitigating evidence violated

his nghts under the Eighth Amendment (as opposed to the Sixth

Amendment as was discussed in Section I1J). The Court

rejected this claim in its first Order due to the procedural bar

and because the claim is barred by the non-retroactivity rule

from Teague v. Lane, 489 U.S. 288, 316 (1989). The Court

adheres to the latter ruling, and further observes that counsel!

was not barred from presenting mitigating evidence, he simply

chose not to do so: in that context. the Court does not see how

the Eighth Amendment provides Petitioner any greater

protection than his Sixth Amendment night to effective

assistance of counsel.

L. Trial C I's Conflict of

This claim was previously denied on the merits. and the

Eighth Circuit affirmed this decision. White v. Bowersox. 206

F.3d at 782-83.

This issue is moot in light of the Eighth Circuit's rulings

declaring that all claims (with certain exceptions not implicated

by the postconviction process) must be considered on the

merits. Even if the claim is not moot, it has been rejected in

other cases. E.g.. Coleman v. Thompson. 501 U.S. 722 (1991),

Lowe-Bey v. Groose, 28 F.3d 816 (8” Cir.), cert. denied, 513

U.S. 1061 (1994).

N._Aband ByP ction )

This issue is moot in light of the Eighth Circuit's rulings

declaring that al! claims (with certain exceptions not implicated

by the postconviction process) must be considered on the

ments.

0. Due P oe

This issue, which addressed the pleading requirements in

Missouri's postconviction proceedings, is moot in light of the

Eighth Circuit's rulings declaring that al! claims (with certain

exceptions not implicated by the postconviction process) must

be considered on the ments.

»9 15

This issue 1s moot in light of the Eighth Circuit's rulings

declarnng that all claims (with certain exceptions not implicated

by the postconviction process) must be considered on the

menits.

Fry ny my ) : Will

Petitioner's sister (Joyce Williams) provided an affidavit

averring that she went to work at approximately 5:00 p.m. on

January 5, 1987, and left Petitioner at her house to watch her

children. She returned home sometime between 2:00 and 4:00

a.m. the next day, and Petitioner was asleep on a bed. She went

to sleep around 8:00 a.m., and Petitioner was still sleeping.

Unfortunately, Williams has not testified at any hearing.

including the January 2004 hearing. This precludes any

opportunity for the Court to judge the value of her testimony.

In addition, Williams’ affidavit indicates that Petitioner told her

he would talk to Duncan and arrange for him to talk to her, but

Duncan did not talk to her until after the trial started. There is

no evidence as to when Petitioner told Duncan that his sister

would be able to provide an alibi, nor 1s there any indication as

to why Williams was not called to testify. Accordingly, the

Court cannot grant relief on this issue.

a ne Deliver Onenins $

Until now, Petitioner has consistently described this issue

as counsel's failure to provide an opening statement. This is

not an accurate description. Duncan reserved opening

statement, T.Tr. at 530, and O"Connor delivered an opening

statement at the end of the State's case and before presenting

evidence. T.Tr. at 996-98. Admittedly, the statement was short

- but Petitioner has not previously raised an issue about it

content or length. Petitioner has also not previously raised an

issue about the timing of the statement — which is just as well.

as the decision whether to deliver an opening statement before

or after the State's case is a classic strategy decision.

Petitioner's latest contentions regarding the timing and content

of the opening statement are not raised in the First Amended

Petition and are not before the Court.

— on oa r Hire an E

Petitioner contends his trial counsel was ineffective for

failing to hire an expert to testify that those who use crack

cocaine — such as Kinney and Black — suffer damage to their

ability to perceive and remember events. Dr. Lee Evans, a

psychiatric pharmacist, testified at the January 2004 hearing.

He described cocaine’s effect on the human body. He reviewed

transcripts of Kinney's and Black's testimony at Buckner'’s trial,

Petitioner's trial, and in depositions. He concluded that

Kinney’s memory of details was “impacted” by her use of

crack. Hrg. Tr. 193. He based this conclusion on her admission

to extensive crack use and the presence of a multitude of

inconsistencies in her statements. Hrg. Tr. at 193-97.

The Court is not persuaded that an expert's testimony would

have been particularly helpful at trial or that the failure to retain

an expert constituted a violation of the performance prong. Dr.

Evans essentially took facts already known to the jury and

linked them together in a casual relationship. The jury knew

that Kinney was a chronic abuser of crack, and the jury was

aware of the inconsistencies in her descriptions of events. Dr.

Evans could hase told the jury that the inconsistencies were

caused by her use of crack, but this information was not terribly

important. The important information was not the cause of

those inconsistencies but rather that they existed in the first

place. Knowing that the inconsistencies were caused by crack

abuse would not have increased their significance.

I yey a a ey bi : : :

Circumstances

Petitioner contends that the prosecutor gave insufficient

notice of its intent to submit the aggravating circumstances

reflected in Instructions 13 and 14 to the jury. He also contends

that two of the instructions were vague. The first permitted the

jury to find an aggravating circumstance because Petitioner and

his cohorts purposely left gas stove’s burners on and blew out

the pilot light, thereby “created a great risk of death to more

than one person by means of a device which would normally be

hazardous to the lives of more than one person... .” The

second allegedly vague instruction asked the jury to consider

whether Wright's murder “involved torture, and that as a result

thereof it was outrageously or wantonly vile, horrible, or

inhuman.”

Petitioner cannot satisfy Strickland's prejudice prong

because Missouri is a “nonweighing™ state, meaning that “a

finding of at least one aggravating circumstance is a threshold

requirement to imposing a death sentence.” Sloan, 54 F.3d

1371, 1386 (8" Cir. 1995), cert, denied, 116 S. Ct. 728 (1996).

As long as the jury validly found at least one aggravating

circumstance, an improper instruction is of no consequence.

Here. the jury found additional statutory aggravating factors

(e.g.. that Petitioner had prior felony convictions, that the

murder was committed while other crimes (other attempted

murders) were being committed, and that the murder was

committed in connection with a robbery). Direct Appeal Legal

File at 17-18. assuming an uncured unconstitutional vagueness

in the instructions, “[t}he jury's penalty phase verdict is. .

reliable despite the unconstitutionally vague instruction on the

other aggravating factor. and the use of that instruction was

harmless.” Id.: see also Buchanan v. Angelone. 522 U.S. 269.

272-77 (1998); Ramsey v. Bowersox. 149 F.3d 749. 757 (8"

Cir. 1998), cert. denied. 525 U.S. 1166 (1999); Bolder v.

Armontrout. 921 F.2d 1359, 1367 (8" Cir. 1990). cert. denied,

502 U.S. 850 (1991).

my ey rare yarn , bi he Vid i

Petitioner contends that when Petitioner was placed in a

videotaped lineup on May 26, | 987. he was in jail awaiting trial

on an unrelated robbery charge. He alleges that his attorney in

the robbery case was not contacted prior to the lineup. and his

trial counsel in this case was ineffective for failing to object to

the use of the lineup for this reason. The Supreme Court has

held that “a pretrial corporeal identification conducted after a

suspect has been indicted is a critical state in a criminal

prosecution at which the Sixth Amendment entitles the accused

to the presence of counsel.” Moore v. Illinois, 434 U.S. 220,

224 (1977). However, this right was not implicated here

because the lineup was on videotape.

In United States v. Ash, 413 U.S. 300, (1973),

the Court held that the Sixth Amendment does

not require that defense counsel be present

when a witness views police or prosecution

photographic arrays. A photographic

Se ee

‘trial-like adversary confrontation’

~ontndl an accused and agents of the

government; hence, ‘no possibility arises that

the accused might be misled by his lack of

familiarity with the law or overpowered by his

professional adversary.” Id. at 317.

Petitioner contends his trial attorney was ineffective for

failing to impeach Detective Gibson with evidence that he had

committed “improper actions” in prior cases. This claim is

raised specifically with regard to Detective Gibson’s denial that

he took Petitioner's picture. The Court rejects this claim for

several reasons. First, it is doubtful that Detective Gibson could

be impeached in this manner. Second, Detective Glynn

admitted to taking Petitioner’s photograph. Third, the prejudice

to Petitioner is completely absent. There is no denying that a

photograph was taken. nor is there any indication that Detective

Glynn lied when he said that he took the picture, and Petitioner

has not really explained why it mattered who took the picture.

It may be that Petitioner is trying to suggest that Detective

Gibson took a picture and showed it to Kinney outside the

context of a proper lineup, or showed her the picture Detective

Glynn took. The problem is there is no evidence that this ever

happened, see Part II(SS)(2), infra, so Petitioner is simply

speculating. Petitioner cannot speculate that an event might

have happened, then impeach denials of those events.

W. Ineffecti | ‘Trial C 7

Fail Obiect to P tor’s Use of

p Chall | Certain Strikes for C

Petitioner contends that the prosecutor utilized peremptory

challenges to eliminate five jurors who had “conscientious

scruples” against the death penalty and six jurors who expressed

difficulty believing witnesses who used illegal drugs. He also

claims that his trial counsel failed to object to two of the

prosecutor's requests to strike jurors for cause.

The first aspect of this claims is not cognizable because it

would require a new rule of criminal procedure, and new rules

may not be announced (absent circumstances not present here)

in a habeas proceeding. Teague v. Lane. 489 U.S. 288, 316

(1989). The use of strikes in this manner is not barred by

Batson v. Kentucky. 476 U.S. 79 (1986), and Petitioner would

require a new constitutional rule in order to demonstrate that he

was prejudiced by the failure to object. The Court cannot find

prejudice absent a rule prohibiting the prosecutor's use of

strikes for these reasons, and it cannot create the rule in light of

Teague.

The second aspect is clearly lacking in merit. Venireman

Heman agreed that he did not know if he “could be fair to both

the State and the defendant” because of his views regarding

drugs. T.Tr. at 333. There is no indication as to what counsel

should have done, and agreeing to strike Mr. Heman for cause

was reasonable given that the murder was related to a drug

transaction and the jurors would be assessing the penalty if

Petitioner was found guilty. In addition to her views about

drugs, Venirewoman Meysenburg declared that she did “not

take stress very well” and was suffering from a migraine

headache after just one day of the jury selection process. Tr. at

370-71. She also revealed that she would “probably” vote

automatically for life without parole if Defendant were found

guilty. Tr. at 369. It is not clear whether the basis for the strike

for cause was Ms. Meysenburg’s views regarding drugs, her

inability to consider the death penalty, or her health, Tr. at 384;

regardless, the record reveals that the strike for cause was

appropriate so failing to object was not ineffective assistance.

Ry yp map cree yee ; *s Closing /

During Penalty Phase

The claim was previously denied on the merits. and the

Eighth Circuit affirmed this decision. White \. Lue*bers. 307

F.3d at 730.

Y._Ineffective Assistance of Appellate Counsel:

Fail ion of Evid

Regarding Miranda Waiver 3 . Ly

During cross-examination, Petitioner's trial counsel asked

Detective Gibson whether he read Petitioner his nghts pnor to

interviewing him. He also established that Petitioner was

willing to talk with Detective Gibson and did not ask for a

lawyer. T.Tr. at 775-76. On redirect, the prosecutor asked

whether Detective Gibson had asked Petitioner to sign a waiver

of his Miranda rights; Detective Gibson said that he had. T.Tr.

at 784. Petitioner's trial counsel then approached the bench to

object; after the trial court forced him to assert a ground for his

objection. he declared “it’s irrelevant, it's immaterial, and the

fact he signed a consent form has nothing to do with it because

he talked to them.” T.Tr. at 785. This objection was overruled.

Upon resumption of the redirect examination, Detective Gibson

reaffirmed that he had asked Petitioner to sign a waiver form

and he refused to do so. T.Tr. at 786.

Petitioner contends his appellate counsel was ineffective for

failing to challenge the testimony on the grounds that it

constituted an infringement on Petitioner's constitutional nght

to remain silent. The problem with this argument is that trial

counsel did not make a constitutional objection; he objected on

the basis of relevant. The issue Petitioner claims his appellate

counsel should have raised was not preserved at tral and would

have been reviewed only for plain error if raised on appeal.

Under Strickland. in evaluating whether an attorney

provided objectively unreasonable assistance. a reviewing court

should minimize the effects of hindsight and recognize a strone

presumption that counsel's conduct falls within the wide range

of reasonable professional assistance. Because of this

presumption and the reality that effective appellate advocacy

often entails screening out weaker issues, the Sixth Amendment

does not require that appellate counsel raise every colorable or

non-frivolous issue on appeal. Absent contrary evidence, we

assume that appellate counsel’s failure to raise a claim was an

exercise of “sound appellate strategy.” The decision to forgo a

plain error claim is usually the result of a reasonable winnowing

of weaker appellate claims. Therefore, we rarely conclude that

an appellate attorney’s performance was constitutionally

deficient for not raising such a claim.

Roe v. Delo, 160 F.3d 416, 418 (8” Cir. 1998) (internal

citations and quotations omitted). There is no contrary

evidence, so the presumption this was sound strategy stands,

and there was minimal likelihood of success. By the time the

redirect started, the jury already knew that Petitioner had talked

to Detective Gibson. Thus, the discussion of the Miranda

waiver could not be understood as a comment on his right to

remain silent because Petitioner was not silent. The discussion

could not be understood as a comment about his right not to

testify, as Detective Gibson’s testimony was too attenuated to

raise this issue. The Court rejects the claim.

During his direct examination, Black testified that he was

shown approximately four videotape lineups in September

1987; some of the men looked like the men involved in the

crime, but he was unable to positively identify an one in those

lineups. T.Tr. at 880. On the Saturday before trial, he was

shown two videotapes, T.Tr. at 880-81, and was prepared to

testify that one of the men was (or at least appeared to be) the

man who slashed Wright’s throat. The lineup containing the

picture in question was one of the four shown to Black in

September 1987. T.Tr. at 883, 892-93. On the Monday the tna!

started, prosecutors told Duncan that Black had identified

Petitioner as the man who entered with Buckner. Tria] counsel

misunderstood the prosecutor and thought he meant that Black

had positively identified Ford (who was also in the lineup).

T.Tr. at 881-82. 884. Ultimately, the trial court overruled an

objection based on the timeliness of the prosecutor’s disclosure

- the only objection made at trial on this matter. T.Tr. at 884-

86.

Petition *r now contends that his appellate counsel was

ineffective for failing to challenge Black's identification as

unreliable because the lineup was unduly suggestive based on

its contents and Black’s “repeated exposure” to it. He also

argues that appellate counsel should have raised a claim based

on the fact that trial counsel was not permitted to be at the

private screening held by the prosecutor. None of these

objections were made at trial and would have only been

reviewed for plain error, so appellate counsel could reasonably

refrain from raising them. See Roe, 160 F.3d at 418.

Black’s two viewings of the tape occurred approximately

sixteen months apart - hardly the repetitious showing Petitioner

insinuates occurred. As noted earlier, the Supreme Court has

held the Sixth Amendment is not implicated when a criminal

defendant is included in a photographic or video array. See

Moore v. Illinois, 434 U.S. at 227. The Court is concerned

about the suggestiveness of the lineup itself, but Petitioner has

not provided much in the way of legal analysis on this issue."

Suggestiveness alone does not qualify an identification.

Manson v. Brathwaite, 432 U.S. 98. 112-14 (1977). The key

inquiry is reliability, and the factors to be considered

include the opportunity of the witness to view the criminal

at the time of the crime. the witness’ degree of attention, the

accuracy of his prior description of the criminal. the level of

certainty demonstrated at the confrontation, and the time

between the crime and the confrontation. Against the

factors is to be weighed the corrupting effect of the

suggestive identification itself.

Id. at 114 (citing Neil v. Biggers, 409 U.S. 188, 199-200

(1972)).

There are five men in the lineup. One man is wearing a

prison shirt and pants, which are noticeable for their pastel-blue

color. Petitioner was wearing a prison shirt, but nobody else in

the lineup was wearing prison clothing. Counting Petitioner,

only two men had a moustache and beard, and the other one

was not wearing prison clothing. After initially indicating that

some of the men in four different lineups looked like the men

involved in the murder, sixteen months passed - at which time

Petitioner is shown less lineups that contain a total of two

people sharing the attributes of both a beard and moustache. and

one of those two individuals was wearing a prison shirt. While

this describes a certain amount of suggestiveness, the distance

in time between the viewings undercuts its effect to some extent

- and, conversely, the distance in time also undercuts the

reliability of Black's identification.

"Contrary to Respondent's assertion, the Court has not previously

considered the merits of this claim: the Court held it was defaulted because

evidence about the lincup was not developed in state court.

Ultimately. the question is not whether admitting Black 's

identification was error, but whether it was plain error. such)

that the failure to raise the issue on appeal denied Petitioner his

Sixth Amendment night to effective counsel. The Court

concludes that there was no plain error.

AA. Actual Innocence

Petitioner presents his actual innocence as a substantive

ground entitling him to relief. In Herrera v. Collins, 506 U S.

390 (1993), the Supreme Court pointed out that “[c}laims of

actual innocence based on newly discovered evidence have

never been held to state a ground for federal habeas relief absent

an independent constitutional violation occurring in the

underlying state criminal proceeding.” 506 U.S. at 400.

Although actual innocence plays a role in habeas proceedings,

it does so only as a supplement to a constitutional claim - not as

an independent claim. Id. at 404. The distinction was

emphasized in Schlup v. Delo: a free-standing claim of actual

ianocence is governed by Herrera, whereas a claim of actual

innocence used to demonstrate cause and prejudice to overcome

a procedural bar to federal review is governed by a different

standard (as announced in Schlup). 513 U.S. 298, 315-17

(1995). The Court went on to explain the different standards as

follows:

If there were no question about the fairness of the

criminal trial, a Herrera-type claim would have to fail

unless the federal habeas court is itself convinced that

those new facts unquestionably establish [petitioner's]

innocence. On the other hand. if the habeas court were

merely convinced that those new facts raised sufficient

doubt about [petitioner’s] guilt to undermine confidence

in the result of the trial without the assurance that the

trial was untainted by constitutional error, [petitioner’s]

threshold showing of innocence would justify a review

of the merits of the constitutional claims.

Id. at 317.

Subsequent Eighth Circuit op...ons do not make clear

whether Herrera completely bars free-standing claims based on

actual innocense or whether, in light of Schlup, it merely erects

an extremely high standard for such claims. Herrera was

decided in 1993, and Schlup was decided in 195. Four months

after Schlup was decided, the Eighth Circuit cited it for the

proposition that a free-standing claim of actual innocence is

cognizable and relief can be granted only if new facts

“unquestionably establish [the petitioner’s] innocence.”” Allen

v. Nix. 55 F.3d 414, 417 (8" Cir.), cert. denied, 516 U.S. 1014

(1995) (quoting Schlup, 513 S. Ct. at 317) Later, in Meadows

y. Delo, the Eighth Circuit was again presented with a free-

standing claim of actual innocence and declared that “reliance

of Schlup is misplaced.” 99 F.2d 280, 283 (9" Cir. 1996).

Instead the Meadows Court relied on Herrera to hold that the

“claim of innocence based on newly discovered evidence is not

cognizable on habeas review.” Id. In Cornell v. Nix, the Eighth

Circuit relied on Allen and subjected a free-standing claim of

actual innocence to the “unquestionable innocence” started.

119 F.3d 1329, 1334 (8" Cir. 1997). Cases continue to fall on

both sides of the issue, culminating in Burton v. Dunmire,

which relied on Meadows to reject the claim out of hand. 295

F.3d 839, 848 (8 Cir. 2002), cert. denied, 538 U.S. 1002

(2003).

Resolution of Petitioner’s claim is easy if the claim is not

cognizable: if it is not cognizable, no relief can be granted.

However, because the law in this Circuit is not clear, it is

prudent for the Court to consider Petitioner's claim under the

standard described in Cornell and Allen. This, too, is an easy

rmatter: Petitioner’s guilt and defense both depend on the

credibility of eyewitnesses, and most of the testimony is subject

to a certain degree of skepticism for a variety of reasons. The

Court cannot conclude that Petitioner is “unquestionably

innocent.”

Failure to Discuss Plea Offer

In his Amended Petition Petitioner asserted that, while the

jury was deliberating, the prosecutor offered to permit

Petitioner to plead to second degree murder and receive a

sentence of fifteen years. He claims that his trial counsel failed

to discuss the plea offer with him, thereby failing to provide

ineffective assistance. Petitioner did not present evidence of an

offer, and the Court is unable to find an offer was made, Hrg.

Tr. at 28-29, 31-33, so this claim fails on the merits.

CC. Ineffective Assi ‘Trial C ,

Absence of Lead Trial Counsel

On February 3 - the Friday of the first week of tnal -

Petitioner’s lead trial counse] was not present at the start of the

day’s proceedings. The jury was not given any reason for his

absence. T.Tr. at 707. The record does not reflect that he ever

appeared at trial that day, and there is no indication he said

anything on the record. Petitioner had suggested that Duncan

- was speaking at a Continuing Legal Education Seminar, but the

only evidence of such an event establishes that his presentation

occurred after the penalty phase of the trial. Hrg. Tr. at 112-14.

Ultimately, it does not matter why Duncan was absent. The

critical inquiry was wheter Petitioner's Sixth Amendment

rights were violated in his absence, and the mere absence of

lead trial counsel is not a per se violation of that right the focus

must be on the events that occurred in Duncan's absence,

during which time O’Connor was present. Admittedly,

O’Connor became involved in the case at the last minute and

his duties originally were minimal. but by the time of tral. it

was contemplated that O'Connor would play a meaningful role

in the defense. Petitioner can prevail on this claim on by

identifying something O'Connor did or failed to do that

constituted ineffective assistance because absent such a

showing there is no prejudice from Duncan's absence.

Petitioner has not done this so the claim must be denied.

DD. Judicial Bias During P ae

Proceedings, Part |

The Court denied relief on this claim, and the Eighth Circuit

affirmed in the first appeal. White v. Bowersox, 206 F.3d at

783.

EE. Judicial Bias During Trial

This claim was procedurally defaulted when it was not

raised on direct appeal. Thus, it was procedurally defaulted

before the postconviction proceedings, and the Eighth Circuit's

rulings regarding the procedura! bar do not affect issues that

were defaulted during or before direct appeal. White v.

Luebbers, 307 F.3d at 727 n.2.

FF. Judicial Bias During P oe

Proceedings, Part I!

The Court denied relief on this claim, and the Eight Circuit

affirmed in the first appeal. White v. Bowersox, 206 F.3d at

783.

GG. Ineffective Assi Trial C .

“Bad Loser” Comment

During small-group voir dire, one of the jurors related an

event that occurred when he had served on a jury previously.

He explained that following the verdict one of the lawyers told

him that some of the State's witnesses had lied. He did not

recall whether it was a prosecutor or defense attorney. T.Tr. at

417-18. A lengthy discussion (out of the jury's hearing) about

the possibility that these comments poisoned the small group

ensued. The trial judge struck three oi the five potential jurors

for cause, T.Tr. at 444, leaving only Venirepersons Benedict

(#87) and Ford (#89). Benedict and Ford were returned for

additional voir dire, T.Tr. at 454, and the prosecutor was

permitted to explain that the incident “was an example of a

defense attorney being a bad loser” and “that it certainly wasn't

the prosecutor that said a witness lied, and that . . .in fact wasn't

the case.” T.Tr. at 455. Petitioner contends that his trial

counsel provided ineffective assistance in failing to object to

these statements.

Petitioner cannot demonstrate prejudice. After excluding

those jurors who were struck for cause, peremptory strikes for

the main panel were made against jurors with numbers under

#79. T.Tr. at 495-96. Benedict and Ford were candidates to be

the second alternate, T.Tr. at 496, but both were struck

peremptorily. T.Tr. at 499 (identifying jurors and alternates).

It is true that at the time of Petitioner’s trial, Missouri law

provided “that criminal defendants are entitled to a ‘full panel

of qualified jurors before being required to make peremptory

challenges’ and that failure to sustain a meritcrious challenge

for cause is prejudicial error.” Sloan, 54 F.3d at 1387 (quoting

State v. Wacaser, 794 S.W.2d 190, 193 (Mo. 1990) (en banc))."”

However, Petitioner cannot argue that his use of a peremptory

'"Wacaser was legislatively overruled long after Petitioner's tnal. Thus, at

the ume of his tnal. Petitioner was entitled to a fully qualified, untainted jury

upon which to exercise his peremptory strikes.

challenge on either Benedict or Ford'* constitutes prejudice

under Strickland because none of the alternates were called

upon to deliberate. T.Tr. at 1027-29 (jurors identified when

polled at the end of the case). Thus, Petitioner was not

prejudiced by the prosecutor's comments and the resulting

“need” to use a peremptory to eliminate Benedict or Ford as a

potential alternate.

HH. Ineffective Assi rf ie

Counsel, Part IJ

This issue is moot in light of the Eighth Circuit’s rulings

declaring that all claims (with certain exceptions not implicated

by the postconviction process) must be considered on the

merits. Even if the claim is not moot, it has been rejected in

other cases. E.g., Coleman vy. Thompson, 50! U.S. 722 (1991);

Lowe-Bey v. Groose. 28 F.3d 816 (8" Cir.), cert. denied, 513

U.S. 1061 (1994).

ey ee Raise E + Clai

Within this argument, Petitioner claims his appellate

counsel should have raised the following grounds: “verdict

directing instructional error, Brady violation by the state,

challenges to the prosecution’s guilt phase and penalty phase

closing arguments.” Some of these claims are discussed in

greater detail elsewhere in this ~.@ * The argument regarding

the verdict director lacks meri’ © «t II(LL), infra, so his claim

of ineffective assistance of cuuusel must be rejected as well,

Similarly, his Brady claim lacks merit, appeal. Finally,

Petitioner has not provided sufficient detail about the remaining

portions of this claim to permit meaningful discussion (and, in

"Both were candidates to be the second alternate, and neither was chosen.

Thus. it can be deduced that the prosecutor used his peremptory on either

Benedict or Ford and Petitioner used one on the other.

—_—— —-~ ws oC >

any event, the Court notes that any appeal would have sought

only plain error review).

Fai : Mistnal During P

Closing Arguinent

During his closing argument following the trial’s guilt

phase, the prosecutor told the jury that “if one of you doesn’t do

your job, if just one of you doesn’t do your job, ladies and

gentlemen, this man wins, and this man gets away with what he

intended-" Supp. T.Tr. at 30." Petitioner's trial counsel

objected, and the trial court sustained the objection and

instructed the jury to disregard the prosecutor's comment.

Supp. T.Tr. at 32-33. Prior to the delivery of the cautionary

instruction to the jury, Petitioner's trial counsel moved for a

mistrial] but also stated that “as a practical matter | don’t want

a mistrial,” Supp. T.Tr. at 31-32. After the objection was

sustained in open court, trial counsel approached the bench

again and moved for a mistrial, and the motion was denied.

Supp. T.Tr. at 33.

On direct appeal, Petitioner chiallenged the trial court's

denial of the motion for mistrial. After recounting the

circumstances described above, the Missouri Supreme Court

held that “{u}nder these circumstances, the trial court cannot be

said to have erred in refusing to grant the drastic remedy of a

mistrial. The defendant cannot complain about the denial of a

mistnal when his counsel plainly told the court that he did not

wa. this relief.” White 1, 813 S.W.2d at 866.

Petitioner does not challenge the denial of the mistrial;

instead, he argues that trial counsel’s actions constituted

“This is a reference to the Supplemental Tra! Transcript, which contains the

prosecutor s closing argument.

ineffective assistance. Whether to seek a mistrial is a strategic

decision. particularly given that Duncan believed (albeit

mistakenly) that there was a good chance the jury would acquit

Petitioner. Assuming the performance prong was violated. the

Court discerns no prejudice. The curative measures employed

by the trial judge were more than adequate, and there is not a

reasonable probability that a mistnal would have been ordered

(particularly since the trial judge denied the belated request).

ive Assi f ll nsel

1 1 rady \ lan

The prosecution in a criminal manner has a constitutional

obligation to disclose exculpatory evidence to the defendant.

See Brady v. Maryland, 373 U.S. 83 (1967), Giglio v. United

States, 405 U.S. 150 (1972). “A finding of materiality of the

evidence is required under Brady.” Id. at 154. Exculpatory

evidence is considered material “if there is a reasonable

probability that, had the evidence been disclosed to the defense.

the result of the proceeding would have been different.”

Strickler _v. Greene, 527 U.S. 263, 280 (1999) (quotation

omitted). Non-disclosure menits relief only if the prosecution's

failure “undermines confidence in the outcome of the trial.”

Kyles v. Whitely, 514 U.S. 419, 434 (1995) (quotation omitted).

The Supreme Court has rejected any distinction between

impeachment evidence and exculpatory evidence. See Bagley,

473 U.S. at 676. The “individual prosecutor has a duty to lean

of any favorable evidence known to others acting on the

government’s behalf in the case, including the police.” Kyles,

514 US. at 437.

Petitioner contends Brady was violated when the picture

Detective Glynn took was not disclosed until trial.*” For the

**Petitioner has also offered a letter from Duncan's predecessor in an attempt

to establish that the picture's existence was denied by the State until tral.

This letter contains and constitutes hearsay, and the Court must disregard 1t.

sake of arguinent the Court will assume the picture was not

disclosed until trial,”' but the claim still fails because the picture

is not evidence of anything. It has no role in this case unless it

was shown to one of the victims, but there is no evidence that

this happened. It is not even clear that the picture was used as

part of a photographic array. The issue is discussed in greater

context in Part II(SS)(2), infra. Moreover, Brady was not

violated even if the picture was not revealed until trial, because

Petitioner has not demonstrated that the late disclosure

prevented Petitioner from obtaining a fair trial. Cf. United

States v. Parker, 267 F.3d 839, 846 (8" Cir. 2001 ), cert. denied.

535 U.S. 1011 (2002). Petitioner was not denied ineffective

assistance of counsel because there is no basis for arguing that

Brady was violated.

LL. Ineffective Assistance of Appellate Counsel:

Verdict Director

The Court rejected this claim on the merits in its first Order

and declined to include the issue in the Certificate of

Appealability. In its opinion, the Eighth Circuit held there was

no need to reconsider claims that had already been addressed on

the merits, and there is no suggestion that anything in the Eighth

Circuit’s second opinion requires reconsideration of those

claims. Accordingly, this claim is rejected.

MM. Ineffective Assistance of Postconviction

oO Part Il]

This issue is moot in light of the Eighth Circuit’s rulings

declaring that al] claims (with certain exceptions not implicated

by the postconviction process) must be considered on the

*'At the hearing. O'Connor testified that he saw it for the first time at the

trial. Hrg. T. at 8}. There is no evidence as to whether the photograph was

in the file available for counsel's inspection or whether Duncan was aware

of its existence.

eo «<= -e@s6”" - = _ EE —

merits. Even if the claim is not moot, it has been rejected in

other cases. E.g., Coleman v. Thompson. 501 U.S. 722 (1991):

Lowe-Bey v, Groose. 28 F.3d 816 (8" Cir.). cert_dented, 513

U.S. 1061 (1994).

F s Def e€

O’Connor was Trial Director for the Jackson County

Prosecutor’s Office when Wright's murder was being

investigated and when the indictment in this case was filed. He

also speculates that O’Connor “reviewed the case and assigned

it to Mr. Hall and Mr. Peters for trial. He also may have been

involved in the decision to seek the death penalty.” Prior to

jury seection, Duncen asked Petitioner if he understood that

O’Connor would be assisting in the case. He also indicated his

understanding that O'Connor “until about a year ago was in the

Prosecuting Attorney's Office” but that he had not reviewed

Petitioner's case during his employment as a prosecutor. T.Tr.

at 4-5.

Petitioner now contends that O’Connor’s status as a former

prosecutor constituted ineffective assistance of tria] counse).

His mere status as a former prosecutor does not violate

Strickland. The Court finds that O’Connor had no involvement

in Petitioner's case while he was a prosecutor, Hrg. Tr. at 68-

69, so there is no factual basis for this claim.

Fail ietect on Peotnneter’s Onening $

The Court rejected this claim on the merits in its first Order

and declined to include the issue in the Certificate of

Appealability. In its first opinion, the Eighth Circuit held there

was no need to reconsider claims that had already been

addressed on the merits, and there is no suggestion that

anything in the Eighth Circuit's second opinion requires

reconsideration of those claims. Accordingly. this claim is

rejected.

The Court rejected this claim on the merits in its first Order

and declined to include the issue in the Certificate of.

Appealability. In its first opinion, the Eighth Circuit held there

was no need to reconsider claims that had already been

addressed on the merits, and there is no suggestion that

anything in the Eighth Circuit’s second opinion requires

reconsideration of those claims. Accordingly, this claim is

rejected.

Wasting a Peremptory Stnke

Petitioner contends that his trial counsel provided

ineffective assistance when he “wasted” a peremptory strike on

a prospective juror that had already been struck, but the record -

belies Petitioner’s factual assertions. The venireperson in

question, Cassandra Hughes, was number 60 on the panel. She

was questioned during small-group voir dire, T.Tr. at 352-53,

and neither party asked that she be struck for cause. T.Tr. at

353-54. She was not listed among those whom the parties

agreed to strike. T.Tr. at 493-94 (discussion of panelists the

parties mutually agreed to excuse). Her number was low

enough to include her as a potential juror. T.Tr. at 496. While

the attorneys were considering their peremptory strikes, Hughes

reported that she had the flu and the trial court asked the parties

to confirm their agreement that she could be sent home

immediately. Although the parties agreed with the factual

statement that she could be excused, they did not agree that she

would be struck for cause. Specifically, the prosecutor declared

“flor now | think all we need to do is say that she’s going to be

excused because the defendant may end up striking her as one

of their peremptories. .. .” T.Tr. at 498. The discussion then

‘turned to the subject of the alternate jurors. The prosecutor

never agreed that Hughes could be excused for cause; instead,

the participants were simply acknowledging defense counsel's

intent to strike Hughes, thereby permitting Hughes to leave

immediately instead of waiting in the jury room, sick with the

flu, until she was later formaliy dismissed. None of Petitioner's

peremptory strikes were “wasted.”

ight t tat Cntical

This claim was procedurally defaulted when it was not

raised on direct appeal. Thus, it was procedurally defaulted

before the postconviction proceedings, and the Eighth Circuit’s

rulings regarding the procedural bar do not affect issues that

were defaulted during or before direct appeal. White v.

Luebbers, 307 F.3d at 727 n.2.

. In he ist ounsel:

Myriad of Clai

Within this single claim, Petitioner asserts several claims of

ineffective assistance of trial counsel. He contends his attorney

was ineffective for (1) failing to elicit helpful testimony from

Ben Kinney, (2) failing to challenge suggestive pretrial

identification procedures, (3) failing to effectively impeach

Emest Black and Carol Kinney, (4) failing to prepare for tnal,

and (5) eliciting a positive identification of Petitioner from

Ernest Black. The Missouri Supreme Court <'cemed the first

four issues to be procedurally defaulted, but addressed the fifth

claim on the merits; this Court has not yet had the opportunity

to consider the merits of the first four issues.

]. Failing to Elicit Testimony from Ben Kinney

In paragraphs 344-46 of his First Amended Petition.

Petitioner describes the evidence that Ben Kinney could have

provided- He allegedly could have testified that Wright and

Kinney were using and selling cocaine.and that two men known

as “A.J.” and “Josh’-had threatened to kill them. The jurv was

already aware that Wright and Kinney were using cocaine, and

the fact that they were also selling it has no independent

relevance except (maybe) to connect them to the men who

allegedly wanted to kill them. However. Ben Kinney did not

testify at the January 2004 hearing; so the Court has no basis for

deterinining that Petitioner was prejudiced by the failure to

elicit any testimony from him.

2. Failing to Challenge Suggestive Pretrial

Identification Procedures

In an argument related to the one addressed in Part II[Z],

supra, Petitioner contends his attorney should have challenged

the suggestive identifications made by both Kinney and Black.

In September 1987, Black was shown approximately four

videotaped lineups; he failed to make a positive identification.

T.Tr. at 880. The weekend before trial - approximately sixteen

months later - Black was shown two of those same lineups.

T.Tr. at 880-81. Petitioner’s attorneys were not contacted prior

to the January 1989 viewing, nor were they present for it. The

next Monday - the day trial started - Duncan was told that Black

had identified the third man in the lineup as the second man at

Kinney’s house, but he misinterpreted the information to mean

that Black had identified the third man at Kinney’s house. The

third man at Kinney’s house was fairly well established as being

Cleveland Ford. When Duncan’s misunderstanding came to

light on the Saturday of trial,’ Petitioner’s counsel objected on

the basis of the lateness of the disclosure, but the trial court held

“This 1s not a misprint: the transcript reflects that trial proceedings occurred

on February 4. 1989, which was a Saturday.

that the objection was untimely. T.Tr. at 881-86. Black denied

receiving any information about the individuals in the

videotapes prior to viewing them in January 1989. T.Tr. at 886.

He also denied remembering whether the videotapes he saw

immediately before trial were shown to him in September 1987.

T.Tr. at 954,

Several issues related to Black's identification were

discussed and rejected in the Court's second order, and the

Court declined to issue a Certificate of Appealability. Further

discussion is not warranted, except for one respect: Petitioner’s

contention that an objection should have been made based on

the suggestiveness of the lineups. As noted earlier in Section

Il(Z), the real issue is reliability; suggestiveness is a factor to be

considered when evaluating reliability. While the

circumstances of Black’s identification and the characteristics

of the lineup certainly represented grounds for impeachment of

both victims, the Court does not believe the identification was

unconstitutionally unreliable.

As part of this argument, Petitioner has insisted that both

Kinney and Black were shown the picture Detective Glynn took

of Petitioner. A showing of a single photograph is a factor in

determining the reliability of an identification, but the Court is

unable to find this happened. Support for Petitioner's

suspicions consists largely of speculation; there is not testimony

to support it. See T.Tr. at 759, 771-72, 782-83 (testimony of

Detective Gibson denying that he showed a single picture to

Kinney); Hrg. 1.. at 257, 260 (same); T.Tr. at 747, 750

(testimony of Detective Glynn denying that he interviewed

Kinney or showed her Petitioner’s picture); T.Tr. at 637-44

(testimony from Kinney describing her identification of

assailants); Hrg. Tr. at 364-67, 393-95 (testimony of Kinney

disavowing any memory of seeing Petitioner’s picture before

viewing the lineup, and never indicating that she saw any

picture (including Petitioner's) in isolation): T.Tr. at 662-63

(similar testimony).

Petitioner makes much of the fact that a picture. if available.

would be “used” in the investigation. but this does not establish

that it would be used in a suggestive or otherwise inappropriate

manner. As Detective Gibson explained, a photograph (such as

the one taken by Detective Glynn) would be used as part of an °

array comprised of several photographs. Hrg. Tr. at 263-64.

Petitioner also points to Kinney’s deposition from Buckner’s

trial, wherein she indicated (at pages 97-98) that she saw

Petitioner's picture before identifying him from the lineup.

However, that passage does not indicate that she saw

Petitioner's picture in isolation; in fact, on page 18 of her

deposition she denied ever being shown just one paragraph.

The Court finds that neither surviving victim was shown a

photograph of Petitioner by itself.

3. Failing to tively Impeach Kinney and Black

This claim is described in paragraphs 357-58, and alleges

that Kinney and Black should have been impeached with their

prior inconsistent statements and with testimony from Ben

Kinney. As noted earlier, Ben Kinney’s testimony has not been

presented to any tribunal, so this aspect of the claim must fail.

The Court also notes that Kinney and Black were impeached on

a variety of inconsistencies in their statements. The Court holds

that neither of Strickland’s prongs was violated.

4. Failing to Prepare for Trial

This claim raises concerns including Duncan’s failure to

interview witnesses, conduct depositions, or plan for the penalty

phase. These issues are raised more specifically and more

thoroughly in the context of other claims, so this claim ts

rejected as duplicative.

5, Eliciting Harmful Testimony from Black

This Court rejected this claim on the merits in its first

Order. The Court's holding is repeated below:

[T]he Missoun Supreme Court affirmed the tral court’s

finding that “counsel’s cross examination of Black was

precisely in line with the trial strategy of misidentification.

Black identified movant in-court [sic] on direct examination

and ‘t was clearly counsel’s strategy to draw attention to the

fact that Black had never been able to identify him before.

It is also difficult to see how movant was prejudiced by this

questioning since Black had already identified movant on

direct as had Caro] Kinney both before and at trial. At

most, therefore, Black’s response to counsel’s questions

was cumulative.” White Ill, 939 S.W.2d at 898. This

finding is supported in the record and is entitled to

deference. E.g., Pryor, 103 F.3d at 712-13. In light of this

finding, Petitioner cannot satisfy either of Stnckland’s

prongs.

This issue was not included in the Certificate of

Appealability. In its first opinion, the Eighth Circuit held there

was no need to reconsider claims that had already been

addressed on the merits, and there is no suggestion that

anything in the Eighth Circuit’s second opinion requires

reconsideration of those claims.

TI. Conflict of Interest, Secon |

This claim was previously denied on the merits, and the

Eighth Circuit affirmed this decision. White v. Bowersox, 206

F.3d at 782-83.

UU. Restrictions on Cross-Examinatior

The Court rejected this claim on the menits in its first Order

and declined to include the issue in the Certificate of

Appealability. In its first opinion, the Eighth Circuit held there

was no need to reconsider claims that had already been

addressed on the merits, and there is no suggestion that

anything in the Eighth Circuit's second opinion requires

reconsideration of those claims. Accordingly, this claim ts

rejected.

Ww. iV r lly

The Court rejected this claim on the merits in its first Order

and declined to include the issue in the Certificate of

Appealability. In its first opinion, the Eighth Circuit held there

was no need to reconsider claims that had already been

addressed on the merits, and there ic no suggestions that

anything in the Eighth Circuit's second opinion requires

reconsideration of those claims. Accordingly, this claim is

rejected.

Ill, CONCLUSION

For the foregoing reasons, Petitioner's application fora Wnt

of Habeas Corpus is granted in part and denied in part.

Petitioner’s conviction and death sentence must be vacated.

Within forty-five days after this Order becomes final (including

any appeals that may be taken), the State must commence a new

trial; if the State does not do so, Respondent must release

Petitioner from custody.

IT IS SO ORDERED.

/s/Ortrie D. Smith

ORTRIE D. SMITH, JUDGE

UNITED STATES DISTRICT COURT

Dated: June 14, 2004

United States Court of Appeals,

Eighth Circuit.

Leamon WHITE, Appellant,

Al LUEBBERS, Appellee.

No. 01-3044WM.

Submitted: Sept. 10, 2002.

Filed: Oct. 11, 2002.

Stephen D. Hawke, argued, Jefferson City, MO, for appellee.

Before HANSEN, Chief Judge, RICHARD S. ARNOLD and

LOKEN, Circuit Judges.

RICHARD S. ARNOLD, Circuit Judge.

This is a petition for habeas corpus brought by Leamon White,

a prisoner in state custody. Mr. White has been sentenced to

death for first-degree murder. His case is now before us for the

second time. On the prior appeal, White v. Bowersox, 206 F.3d

776 (8th Cir.), cert. denied, 531 U.S. 917, 121 S.Ct. 275, 148

L.Ed.2d 200 (2000), we remanded the case to the District Court

"for consideration of Mr. White's constitutional claims, except

those claims that the District Court has already addressed on the

merits." 206 F.3d at 783.

On remand, there was disagreement about the meaning of this

Court's directions. The principal issue addressed in our

previous opinion was the Missouri doctrine of "abandonment,"

under which the omissions of an appointed post-conviction

lawyer can be so serious that the lawyer is said to have

“abandoned” the client, with the result, in most cases, that the

client is allowed to proceed anew. The Missouri courts had

held that Mr. White had been abandoned by his appointed

post-conviction lawyer. but had limited the remedy for this

default. Our major holding was that the remedy should not

have been limited, and that the procedural bar asserted by the

State (the state courts’ limitation of the remedy for

abandonment) was aot adequate to prevent federal habeas

corpus review on the merits. On remand. the State took the

position that only those claims contained in Mr. White's second

amended state-court post-conviction motion were open for

review on federal habeas. The State argued that the rationale

underlying our holding that the remedy for abandonment had

been impermissibly limited went only that far. and that it did

not extend to opening up for federal habeas merits review other

constitutional claims asserted by Mr. White. Petitioner, on the

other hand, argued that our previous opinion should be applied

as written, that all of his constitutional claims "except those

claims that the District Court ha[d] already addressed on the

merits,” 206 F.3d at 783, should be decided by the District

Court without regard to procedural default arguments asserted

by the State.

The District Court agreed with the State on this point. It

observed that a number of petitioner's claims had not been

raised in his second amended post-conviction motion in the

state courts, and that those claims appeared to be defaulted even

if the claims raised in the second amended motion were now

open for review. The Court observed further that our previous

opinion had been "limited to consideration of a single argument

regarding procedural default." Leamon White v. Al Luebbers,

No. 97-1663-CV-W-3, slip op. 3 (W.D. Mo., opinion filed

April 3, 2001). Accordingly, the District Court proceeded ‘1

decide the merits of only those claims that had been raised in

petitioner's second amended motion. As to the other claims

urged by petitioner, it adhered to its holding, made in the

previous stage of the case, that these claims were procedurally

barred for reasons unrelated to the abandonment doctrine.

The major issue before us on this. the second appeal, is the

scope of our remand. The District Court and both parties agree

that that Court was bound to proceed in accordance with our

directions, but they disagree as to what these directions were.

It is now our job to decide the legal effect of our previous

opinion. That this question has arisen at all is due. at least in

part. to some lack of clarity in our previous opinion. and the

writer of this opinion (who also wrote the first one)

acknowledges this responsibility.

On full consideration, we now hold that the terms of remand

embodied in the previous opinion require the District Court to

consider, on their ments, all federal constitutional claims that

have not previously been decided on the merits, with a limited

exception to be described later in this opinion. As to those

claims that the District Court did decide on the merits after the

remand following our previous opinion, we affirm. The

judgment of the District Court will be affirmed in part, reversed

in part, and the cause remanded for further proceedings to be set

out at the end of this opinion.

A description of the procedural context surrounding the first

appeal will help us explain the conclusion we are reaching. In

that case, petitioner raised a variety of constitutional claims.

The State asserted that many of them were procedurally barred.

The petitioner responded with two main arguments: that the

state rules of procedure asserted as bars had not been applied

regularly enough to constitute adequate and independent state

grounds, and that, in any event, he had made, or could make, a

showing of actual innocence, which would avoid the effect of

any procedural! bar. The first of these two arguments, which we

may call, for present purposes, "inadequate state grounds,” itself

had two parts: that the state rule requiring fact pleading in

post-conviction motions had been applied too strictly, or im an

unexpected way, to some of the claims asserted in petitioner's

first amended post-conviction motion; and that the state courts’

limitation of the remedy for attandonment was unexpected and

could not have been anticipated beforehand. (Thus. this

limitation of the remedy could not be said to have been

regularly applied, a requirement of the adequate-state-ground

doctrine.)

As our study of the case went forward following the argument.

it began to seem that this last point, which can be referred to in

shorthand as the abandonment point, would go in petitioner's

favor. There were many claims and several arguments for

avoiding procedural bars, and we were uncertain whether all of

the issues would need to be addressed. We thought it prudent,

therefore, to consult counsel for both sides. On December 23,

1999, the following order was entered:

As we understand the case, appellant makes two basic

arguments for avoidance of a procedural bar:

inadequate state ground and actual innocence. If the

Court decides that either one of these arguments is well

taken, is there any reason why it would need to address

the other one? Are there any issues the merits of which

would be opened up, so to speak, by holding in favor of

appellant on the question of actual innocence, but not by

a holding in favor of appellant on the issue of adequate

state ground?

As indicated, at the time this order was entered, we thought

of the phrase “inadequate state grounds” as a shorthand

description of two distinct but related procedural-bar issues:

inadequate pleading and abandonment. We thought of these

issues as interrelated, in the sense that, if the abandonment issue

went in petitioner's favor, all claims pleaded in the second

amended motion, which itselfhad incorporated both the original

motion and the first amended motion, would be open for

review. Thus, it would not be necessary separately to decide the

pleading issue, which concermed only the first amended motion.

This view is reflected in the opinion we ultimately filed. There,

we said:

The predominant issue on appeal is whether the

procedural rule barring the second motion [the

limitation on the remedy for abandonment} was an

adequate state ground. This issue is practically

determinative of Mr. White's habeas petition because

almost all of the claims raised in the first motion, which

was hastily drafted, were procedurally defaulted due to

inadequate fact pleading.

White v. Bowersox, 206 F.3d at 778.

Looking back, it now appears that this view, that overcoming of

the procedural rule barring the second amended motion, would

be determinative of the case, may have been mistaken. [FN1]

Take, for example, a claim asserted in the second amended

motion, but only through incorporation of the first amended

motion by reference. A holding that the second amended

motion was not barred by a procedural default would open up

the claims made in that motion, but if one of those claims was

itself subject to a separate procedural infirmity, inadequate fact

pleading, it is at least arguable that that separate difficulty

should have been addressed. This, however, is not what we did.

Footnote 4 of our opinion clearly so indicates:

FN1. Our first opinion is the law of the case. As such,

both the District Court and this Court are obliged to

follow it in later proceedings unless we determine that

the first opinion was clearly erroneous and worked a

manifest injustice. United States v. Palmer, 297 F.3d

760, 766 (8th Cir.2002). The State does not suggest

that either of these conditions exists in the present case,

nor do we believe that they do.

Our holding that consideration of the second amended

petition was not barred by an adequate state procedural

ground makes it unnecessary to consider the adequacy

of the state pleading rules held to bar most of the claims

in the first amended petition. We likewise need not

consider petitioner's assertion that his actual innocence

excuses any procedural! default.

Id. at 780 n. 4.

We resume the narrative of the procedural history of the case.

In response to our order of December 23. 1999. the pertinent

parts of which have already been quoted, the parties gave us

their views and supplemental briefs. The petitioner said:

If the Court decides in Mr. White's favor on the basis of the

inadequate state ground issue or the related cause and

prejudice issues, it need not reach his actual innocence

argument.... The reason for this is that al) of these arguments

are separate mechanisms for avoiding procedural default.... If

the Court finds one mechanism lifts the procedural bar, it

need not address the others.

Supplemental Answer and Brief of Appellant 24.

The State's response was not identical, but it was similar:

A determination that the State's procedural rule upon which

petitioner's numerous grounds for relief were defaulted--i.e.,

the pleading requirements under Rule 29.15(b, g)--was not

independent and adequate, would not require a determination

On petitioner's actual innocence claim because those claims

previously deemed procedurally defaulted would be subject

to review on the merits.

Supplemental Bnef of Respondent 23. This response did not

expressly refer to the abandonment issue. but only to pleading

requirements. We understood it to mean. however. that the

abandonment issue. if decided in petitioner's favor, would, in

the view of the State, make determination of other

procedural-bar questions unnecessary, because it was the lawyer

who drafted petitioner's first amended motion who was later

held to have abandoned him. 206 F.3d at 781. Even if the

pleading in that motion were inadequate. therefore. 1t should not

be hel: against petitioner, in our view.

All of this is by way of explaining what went on between our

Court and the parties before the filing of our first opinion.

When that opinion was filed, its conclusion, where one would

normally look for a description of directions to be followed on

remand, read as follows:

Accordingly, we reverse in part, affirm in part, and

remand to the District Court for consideration of Mr.

White's constitutional claims, except those claims that

the District Court has already addressed on the merits.

206 F.3d at 783. The same statement, though made in

somewhat different words, appears at the beginning of the

opinion:

We reverse and remand for further proceedings on the merits

of those claims the District Court held to be procedurally

barred.

Id. at 778. We think the purport of these expressions, especially

when considered against the procedural history of the case,

described earlier in this opinion, is plain. The Distnct Court

was to consider, on remand, all claims on their ments, except

those claims that had previously been so considered. Our

conclusion in this regard is strengthened by the fact that the

State. both in its petition for rehearing and rehearing en banc in

this Court, and in its petition for certiorari filed with the

Supreme Court. adopted this interpretation of our directions.

We now hold that the District Court. on remand from this

second appeal, should proceed accordingly. [FN2]

FN2. There is a group of claims that need not be

considered further, however. These claims. lumped

together by the parties under the label of “trial error."

relate to events occurring at the trial in the state courts.

and represent. in each case, points that were either not

preserved at the trial. or were not included in petitioner's

direct appeal to the Supreme Court of Missouri. At the

oral argument in the present appeal, counsel for

petitioner agreed that these claims did not need to be

considered on their merits. An example of such a claim

appears to be claim RR, based on the theory that Mr.

White's federal rights were violated when he was not

present at a post-trial hearing about one of the jurors

who had failed to reveal that a relative of his had been

an acquaintance of one of the victims. This claim was

not raised on direct appeal nor in the post-conviction

proceedings. The District Court held that the claim was

procedurally barred (J. A.1505, 1861). We do not

understand petitioner to disagree with this holding.

Il.

On remand from our first opinion, the District Court did reach

the merits of three claims. We now turn to a discussion of these

claims.

1. Mr. White first argues that he was deprived of the effective

assistance of trial counsel during voir dire. Counsel, he says,

deliberately failed to ask potential jurors any questions relating

to the death penalty. He did not ask, for example, if there were

jurors who would automatically impose the death penalty after

a finding of guilt of first-degree murder. Nor did counsel

attempt to rehabilitate jurors who had reservations about the

death penalty. In addition, petitioner argues. counsel failed to

ask potential jurors about certain issues that were going to arise

in the case. such as eye-witness identification, graphic

photographic evidence, and children as witnesses. Voir dire ts

an essential part of any tral, petitioner argues, and here his

lawyer was guilty of total default, a decision not to participate

in voir dire at all, at least so far as questions pertaining to the

death penalty were concerned.

We are urged to hold that this failure on the part of counsel was

SO serious that prejudice can be presumed. The normal rule, of

course, is that, in order to establish ineffective assistance of

counsel, a petitioner must show (1) that counsel's performance

fell below what can normally be expected of a professional

defender, and (2) that this defective performance caused

prejudice. The term "prejudice," in turn, is defined as a

reasonable probability that the outcome of the trial would have

been different, and this formulation is further refined by the

statement that such a reasonable probability is shown if the

reviewing court, after surveying the entire record, lacks

confidence in the outcome. See Strickland y. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

We assume for present purposes that counsel's performance

was seriously deficient. The lawyer states that his failure to

participate in voir dire was deliberate and conscious, and that he

chose not to do so because he wished to avoid focusing

potential jurors’ attention on the fact that this was a

death-penalty case. If this was a strategic decir on, it was also

an unreasonable one. The decision left the field entirely to the

State. The State was free, for example, to "rehabilitate" a

potential juror who had appeared, in his initial answers to

questions, to believe that the death penalty should automatically

be imposed. The State might, for example, get such a juror to

agree that. despite his initial statement. he could and would

apply fairly the court's instructions, and would impose the death

penalty, if at all. only in accordance with those instructions.

The process might also work the other way. That is. a juror

might initially indicate doubts about the death penalty. a

circumstance which might justify a challenge for cause on the

part of the State. In this situation. defense counsel would

normally ask further questions to reason with the juror about his

expressed doubts, and try to get the juror to say that, despite any

policy or emotional preferences he might have, he would apply

the law fairly and impartially as given by the court in its

instructions. We see no way to justify a failure on the part of

defense counsel to participate in this process at all. Such a

strategy did not avoid focus on the death penalty: instead. it left

the State entirely free to define this focus in its own terms.

Petitioner does not contend that Strickland prejudice in the

normal sense can be shown here. Suppose counsel] had

followed a proper strategy and questioned the jurors thoroughly

about the death penalty and other matters. We have no idea

what their answers would have been. We have no idea what

rulings the trial court would have made, for example, on

challenges for cause, after hearing those answers. And we have

no idea how the makeup of the jury would have been changed,

if at all. If, for example, voir dire by defense counsel had

succeeded in rehabilitating a potential juror, and a challenge for

cause by the State had thereafter been overruied, the State might

still have avoided that juror by exercising one of its peremptory

challenges. In short, we do not know that any person who got

on the jury was prejudiced against the defendant or in favor of

the death penalty, and we do not know what difference in the

composition of the jury additional voir dire would have made.

Petitioner argues, however, that prejudice should be

presumed. The Supreme Court has recently recognized and

restated this exception to the general rule of Strickland:

We have spared the defendant the need of showing

probable effect upon the outcome, and have simply

presumed such effect, where assistance of counsel has

been denied entirely or during a critical stage of the

proceeding. When that has occurred, the likelihood that

the verdict is unreliable is so high that a case-by-case

inquiry is unnecessary. But only in “circumstances of

that magnitude” do we forego individual inquiry into

whether counsel's inadequate performance undermined

the reliability of the verdict.

Mickens v. Tavior, 535 U.S. 162, 122 S.Ct. 1237, 1240-41, 152

L.Ed.2d 291 (2002) (internal citations omitted). The principal

authority usually cited in support of this exception is United

States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657

(1984). In our view, the exception does not apply here. Cf Bell

v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 1851-52, 152 L.Ed.2d

914 (2002) (applying Strickland prejudice requirement where

attorney did not offer mitigating factors and waived closing

argument at penalty phase). Counsel was not denied éi.. rely,

nor was the assistance of counse] denied entirely during a

critical stage of the proceeding. We ag .. that voir dire is a

critical stage, but petitioner did have counsel, and counsel

proceeded on the basis of his own professional judgment, even

though misguided. More importantly, we do not Yelieve that

the likelihood of prejudice is inherently so great in the present

situation as to justify dispensing with the usual requirement that

prejudice must be shown. Mr. White points out that his lawyer

failed to ask a single question of twenty-four potential jurors

who were removed for cause because they had expressed

reservations about the death penalty. There is simply no way of

gauging the likelihood that some of those jurors would have

served on the actual trial jury if voir dire questions had been

asked, nor is there any way of showing that the jurors who did

actually serve were not completely fair. The Supreme Court has

applied the presumption-of-prejudice exception to Strickland in

very few cases, most of them apparently involving active

representation of conflicting interests. Mickens, supra, 122

S.Ct. at 1241. This 1s not such a case. nor. in our opinion. 1s

there any similar reason for presuming prejudice. Accordingly.

we affirm the District Court's disposition of this point on its

menits.

2. Petitioner argues that his lawyer was guilty of ineffective

assistance of counsel because fF. did not request the removal of

juror Tuggle. This juror, petiuoner asserts, was guilty of

misconduct. It is said that other members of the jury had

expressed concerns that Ms. Tuggle was not paying attention,

and doubts whether she was in full possession of her faculties.

A bailiff also reported that Ms. Tuggle did not seem able to

follow the Court's instructions that she should not watch

television news. The bailiff further reported that Ms. Tuggle

expressed a desire to hurry the deliberations, and that she had

discussed various matters with the jurors, including her opinion

that Ted Bundy got what he deserved.

We agree completely with the District Court's disposition of

this claim. The bailiff did not actually report that the juror had

watched the news, and the fact that she had formed and

communicated an opinion about one of the most notorious mass

murderers in the country is not grounds for removal. She was

discussing the case with her colleagues before final instructions

were read, which was not proper, but we agree with the District

Court's comments on this particular issue:

Although she was discussing the case before final

instructions were read, the Court does not believe this

would have required her removal. A discussion of the

case with fellow jurors after the evidence is in is the sort

of "minor misconduct" that a trial court would have the

discretion to decide does not warrant removal.

District Court opimon a 8. 1 is significam, im addition. that

petitioner himself, when asked by his trial lawyer, said he

wanted Ms. Tuggle to remain on the jury. If the lawyer,

contrary to his client's desires, had moved to remove Ms

Tuggle, we have no reason to suppose that the motion would

have been granted, or that denying it would have been error.

We affirm the District Court's denial of this claim on the merits.

3. Petitioner argues that he received ineffective assistance of

tnal counsel because counsel] failed to object to the prosecutor's

allegedly improper closing argument during the penalty phase.

The District Court's opinion fully discusses six particular

respects in which petitioner claims the State's penalty-phase

closing argument was fundamentally unfair. We have little to

add to that opinion, which is comprehensive and well reasoned.

District Court opinion 17-20. Take, for example, the

prosecutor's argument that the jurors should impose the death

penalty so that society would have retribution. There is nothing

improper about this argument. The desire for retribution, while

not perhaps always a commendable motivation, is a legitimate

purpose of the criminal law. A prosecutor requesting the death

penalty quite naturally believes that this purpose will not be

accomplished if the death penalty is not imposed. There is

nothing wrong with telling the jury this. The jury of course

does not have to be persuaded. That is entirely its own

business. We affirm on its merits the District Court's

determination with respect to the conduct of trial counsel in

choosing not to object to the six specific instances of allegedly

improper closing argument that the District Court reached on

their merits.

Finally. petitioner asks that, if there is to be a remand, we

direct the assignment of this case to another judge of the

District Court. This argument is based upon a preliminary order

of the District Court entered after our remand. The order stated

that the Court had reached a “preliminary view” as to the

meaning of our mandate. This preliminary view was consistent

with the view ultimately taken by the District Court. that is. that

Our opinion on the first appeal opened up for consideration on

the merits on remand only those issues asserted in the second

amended post-conviction motion. The Court's preliminary

order invited the parties to express their views on the matter, in

light of the Court's stated initial inclination.

Petitioner argues that the order created an “impression.”

Brief for Appellant 81, “that the Court had prejudged the issue

of the mandate’s scope ....” We disagree. People often make up

their minds by degrees, and judges are no exception to this rule.

There is nothing improper about a judge’s sharing his or her

tentative impressions or inclinations with the parties in advance

of reaching a final decision. In fact, there are situations in

which this can be a helpful procedure. It gives counsel on both

sides a target to shoot at, so to speak, and alerts them as to the

issues that they need to be addressing. In oral argument in this

Court, for example, one of the judges on the panel. having read

the briefs, may very well say to counsel for one side or the other

that he or she had a certain tentative view of a question

immediately before entering the courtroom, and may then invite

counsel to inform the judge why this tentative view is wrong.

Such a practice does not indicate bias at all. It simply shares

with the lawyers the judge's state of mind at some point

between initially picking up the briefs and coming to a final

conclusion, which wil] occur, at the earliest, only after the oral

argument and the conference.

The Supreme Court's opinion in Liteky v. United States, 510

U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), is

dispositive of this point. So long as the court's expressed views

come from the record of the case itself, or from representations

properly made by the parties or their lawyers, nothing improper

has occurred. “Not a// unfavorable disposition towards an

individual (or his casé) is properly described by [ihe] terms”

bias or prejudice. /d. at 550, 114 S.Ct. 1147 (emphasis in

original).

Also not subject to deprecatory characterization as

“bias” or “prejudice” are opinions held by judges as a

result of what they learned in earlier proceedings. It has

long been regarded as normal and proper for a judge to

sit in the same case upon its remand, and to sit in

successive trials involving the same defendant.

Id. at $51, 114 S.Ct. 1147. Nor was there anything so extreme

or emotional about the District Court's order in this case that

one would be justified in inferring personal bias or favoritism.

In short, we find the case for assignment to a different judge

unconvincing, and we decline to make such a direction.

IV.

So much as the judgment of the Distnct Court has rejected

on their merits the three claims described in part Il of this

opinion is affirmed. So much of that judgment as declined to

reach other claims presented on grounds of procedural bar is

reversed, and the case is remanded to the District Court with the

following instructions: to decide on their merits all claims

alleged in the petition for writ of habeas corpus, not previously

decided on their merits, except those claims falling within the

group described in footnote two of this opinion.

It is so ordered.

307 F.3d 722

(Aug. 28, 2001)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

LEAMON WHITE, *

Petitioner, °

v. * Case No. 97-1663-CV-W3

DON ROPER, °

Superintendent, °

Respondent. °

ORDER DENYING PETITIONER'S APPLICATION

FOR WRIT OF HABEAS CORPUS

On December 4, 1998, the undersigned denied Petitioner's

application for a Writ of Habeas Corpus. The Order observed

that “the issue of procedural default predominates over the

substantive claims asserted by Petitioner," slip op. at 6, and

started its legal analysis by considering the four distinct

arguments Petitioner presented as grounds for overcoming the

procedural bar: (1) actual innocence, (2) ineffective assistance

of post-conviction counsel, (c) abandonment by post-conviction

counsel, and (d) adequacy of state procedural rules. The Court

concluded there was no basis for overcoming the procedural

bar, then considered and rejected the merits of Petitioner's

non-defaulted claims. In some instances the Court also

advanced alternative holdings for the defaulted claims,

concluding they lacked merit.

The Eighth Circuit reversed, holding that certain state

procedural rules were inadequate to constitute a procedural bar.

White v. Bowersox. 206 F.3d 776 (8" Cir.). cert. denied. 121

S. Ct. 275 (2000). The parties have supplied the supplement

briefing requested by this Court. and after considering those

briefs and the record the Court denies Petitioner's application

for a Wnt of Habeas Corpus.

1_SCOPE OF REMAND

The scope of remand is in serious dispute. The Eighth

Circuit's opinion focused on the Missoun Supreme Court's

determination that claims raised in the Second Amended 29.15

Motion were not to be considered because state rules did not

permit a second amended motion to be filed. In its October 3,

2000 Order directing the parties to provide supplemental

briefing, this Court declared that “the undersigned originally

observed that a number of Petitioner's defaulted claims had not

been raised in the second amended Rule 29.15 motion; thus,

those claims appeared to be defaulted even if the claims raised

in the second amended Rule 29.15 motion could be considered

(as will happen now in light of the Eighth Circuit's decision).

In other words, even though claims contained in the second

amended Rule 29.15 motion can now be considered, not all of

the claims previously adjudged to be defaulted were contained

in the second amended motion."

This statement was made without knowledge this issue had

been the subject of some dispute before the Court of Appeals in

the form of various post-decision briefings. However, although

both parties argued about the scope of remand, neither one has

identified an order from that court specifically addressing those

arguments.

"The decision of a federal appellate court estabiishes the law

binding further action in the litigation by another body subject

to its authority, i.e., the district court. The Distnct Court is

bound by the [appellate] decree and must carry it into

execution. On remand. the district court is without power to do

anything which is contrary to either the letter or spirit of the

mandate construed in light of the opinion of [the appellate]

court deciding the case." Pearson v. Norns. 94 F.3d 406, 409

(8th Cir. 1996) (internal citations and quotations omitted).

Here, the Eighth Circuit described its decision as "hold{ing] that

the state procedural rule that barred Mr. White’s second

amended motion was inadequate to bar federal consideration of

these claims." White, 206 F.3d at 778 (emphasis added). In the

concluding portions of the discussion on this point, the court

declared that "the new principles announced by the Missouri

Supreme Court in [Petitioner’s} case were not available to guide

him. . . . Because these principles were neither readily

ascertainable nor firmly established, the procedural default that

ensued cannot be considered an adequate state ground to bar

federal review." Id. at 782 (emphasis supplied). The court’s

holding is not so broad (or at least is not clearly so broad) to

declare that a// grounds for procedural default were invalid.

This observation is particularly important in this case for two

reasons. First, some claims involved trial errors that were

defaulted at trial or on direct appeal. Those claims were

defaulted before any 29.15 motion was filed, and the default

could not be cured by including such issues in the Second

Amended 29.15 Motion. Second, some issues Petitioner

advances in this forum were not included in his Second

Amended 29.15 Motion. Thus, even though the state rule

barring a second amended petition could not provide the basis

for a procedural default, these claims were defaulted because

they were not included in the second amended petition and thus

were never presented to the state courts. The fact that claims in

the Second Amended 29.15 Motion can now be considered will

not cure the failure to present a particular claim at any stage of

the state court proceedings. This conclusion does not violate

the spirit of the appellate court’ s holding, which was limited to

consideration of a single argument regarding procedural default.

A single claim can be defaulted for a variety of reasons, and the

fact that one such reason is removed does not mean that all are

removed. Put another way, Petitioner was required to give the

state courts a "fair" opportunity to consider his claims.

O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999): but even if

one considers Petitioner's attempt to present claim included in

the Second Amended 29.15 Motion there remain some claims

that Petitioner gave the state courts no opportunity to consider.

Those claims were, and remain, defaulted.

Petitioner focuses upon the Eighth Circuit’s directive that

the case was "remand[ed] to the District Court for consideration

of Mr. White’s constitutional claims, except those claims that

the District Court has already addressed on the merits,” id. at

782, and compares it favorable to the instruction in Pearson that

the court on rernand "consider the merits of [the petitioner’s]

claims." Pearson. 94 F.3d at 409. On remand, the district court

concluded the claims were defaulted, but on the subsequent

appeal the Eighth Circuit referenced the language of the remand

and held that the district court “had no power on remand to

address any issues other than the merits of Mr. Pearson’s sixth

amendment claims relative to ineffective assistance at trial." Id.

at 410. From this, Petitioner concludes that al] claims

previously held to be defaulted - - regardless of the reasons for

that conclusion - - are to be considered. Respondent draws a

distinction between the two orders in that Pearson involved

specific instructions to consider the merits, whereas here this

Court was instructed to consider Petitioner’s "constitutional

claims" — and such consideration can result in a conclusion that

they are defaulted for reasons other than those specifically

addressed by the Eighth Circuit.

The Court believes that its preliminary view remains

correct. For that reason, the Court holds that all claims held to

be defaulted for reasons other than the one reversed by the

Eighth Circuit are still defaulted. In the interest of brevity, the

Court incorporates the discussion from Parts II(A) (actual

innocence not grounds for excusing default). 1l(B) (ineffective

assistance of post-conviction counsel not grounds for excusing

default), and II(D) (violation of state pleading requirements

adequate grounds for finding default) of the December 4. 1998

Order herein as set forth verbatim.

il. DISCUSSION

The Court wil] consider the issues Petitioner has raised in

the same order and with the same headings as they were

discussed in the December 4, 1998 Order.

A. ffectiv istance of Trial Counsel: Voir Dire. Part |

Petitioner contends that his trial counsel was ineffective

based on his performance during voir dire. In summary,

Petitioner complains that trial counsel allowed the prosecutor to

“completely dominate the voir dire" and asked very few

questions. As a result, trial counsel allegedly missed

Opportunities to (1) ferret out grounds for challenging jurors for

cause or to rehabilitate them in the face of the prosecutor's

challenges and (2) educate the jury about the death penalty and

Petitioner’s theory of defense. Petitioner does not contend that

his jury was biased; instead, he argues that he was prejudiced

because the jury that decided his case was “prosecution

onented.”

One aspect of this claim was considered and rejected on the

merits on the December 4, 1998 Order; specifically, Petitioner’

s claim that trial counsel was ineffective for failing to

rehabilitate Venireman Danny Robertson. There appears little

doubt that the Eighth Circuit remand order does not require

reconsideration of "those claims that the District Court has

already addressed on the merits," White, 206 F.3d at 783, so

there is no need to address this issue further.

The remaining aspects of this claim lack merit. As the

Court indicated in the December 4, 1998 Order.

the record demonstrates that tral counsel’s decision was

the product of a conscious decision to avoid

overemphasizing the fact that this was a death penalty

case. T.Tr. at 7. Petitioner ndicules this tactic, but it is

not so absurd as to violate tral counsel’s constitutional

obligation to provide effective assistance at tral.

Furthermore, Petitioner is unable to demonstrate that the

composition of his jury would have been any different

had trial counsel acted differently. Cf. Kilgore v.

Bowersox, 124 F.3d 985, 994 (8 Cir. 1997), cert.

denied, 118 S. Ct. 2352 (1998).

Slip op. at 26 n.14. It is this latter point that is most crucial in

this context. It must be remembered that Petitioner does not

allege that his Sixth Amendment night to a fair and impartial

jury was violated, and he does not allege that any of the jurors

on the panel should have been struck for cause. Petitioner

speculates that his jury was "pro-prosecution,” and that further

voir dire would have ferreted out this bias. He also speculates

that additional questions would have permitted some jurors to

be struck for cause.

The Court’s ruling is the same as with respect to Venireman

Danny Robertson. Petitioner does not challenge the fact that

the record provided ample support for removing these jurors for

cause, nor does he suggest exactly what he could do to after

their opinions. All of the jurors declared that there were no

circumstances under which they could vote for the death

penalty, and most further declared that they would

automatically vote for life impnsonment without parole. The

Court is at a loss to understand exactly what trial counsel could

have done to cause these potential jurors to retreat from these

beliefs.

B. Informing Jurors About the Governor's Power to Pardon

This issue was addressed and denied on the merits in the

December 4, 1998 Order. so there is no need to consider it

anew.

C. Ine ive istance of Trial Counsel: Failure to Raise

Caldwell Objection

This claim was also rejected on the merits. so further

discussion is not required.

a ive Assis Trial Counsel: Failure to

Request Removal of Juror

After the Petitioner resied his case in chief. but before final

instructions were read, the bailiff brought a matter involving

one of the jurors (Ruth Tuggle) to the trial court’s attention.

The bailiff related her observations in open court with Petitioner

(but not the jury) present:

The juror, Mrs. Tuggle, has expressed her desire to

hurry the deliberation. She’s asked twice at least in the

past 24 hours whether it lasts very long. She several

times has discussed murders and brought up the case

about Ted Bundy being murdered, and he deserved what

he got.

There’s some concern as to whether she’s really

paying attention. She doesn’t seem quite with it. The

other jurors also feel that maybe she’s not, or it’s hard

communicating with her.

I’ve told her the rules of being a sequestered juror,

watching TV news, what program[s] she can or can’t

watch, and she just doesn't see{m] to be able to follow

those instructions.

T.Tr. at 1026. Petitioner's counsel then asked Petitioner

whether it was his desire to keep Tuggle on the jury, and he

declared it was. T.Tr. at 1026.

Petitioner now contends that his attorney was

constitutionally ineffective for failing to seek Tuggle’s removal.

This claim of ineffective assistance was not presented in either

his pro se 29.15 Motion or the First Amended 29.15 Motion,

Or was it raised on appeal to the Missoun Supreme Court. It

was raised in the Second Amended 29.15 Motion, where the

claim was described as follows:

Defense counsel failed to move to strike Juror No. 58, Ruth

Tuggle, once it became apparent that Juror Tuggle had violated

the court’s order to not discuss the case among the other jurors

or follow instructions given by the bailiff in the case (TR.

1026).

Second Amended 29.15 Motion at 7 (Legal File at 41).

The Amended Petition in this case focuses on Juror

Tuggle’s "desire to hurry the deliberations," her discussion of

"various other murders with other jurors and specifically. . .the

case of Ted Bundy and his execution,” the concern among

jurors as to whether Ms. Tuggle was paying attention, and

whether she was in full] possession of her mental faculties,” and

the bailiffs concern that she "doesn’t seem to be able to follow

... structions.” Amended Petition, {J 77-79. At no time, in

either the Second Amended 29.15 Motion or the Amended

Petition, did Petitioner suggest that counsel should have sought

Juror Tuggle’s removal because she was biased, or that trial

counsel rejected the tral judge’s invitation to remove her. On

remand. Petitioner now contends that counsel was ineffective

for (1) failing to accept the trial court's offer to remove Juror

Tuggle. and (2) failing to seek removal of Juror Tuggle because

she was biased. The Court rejects all argument that have been

raised.

The claim that counsel refused to accept the trial court's

invitation to excuse Juror Tuggie was defaulted. Even if one

considers the argument raised in the Second Amended 29.15

Motion, this argument was not presented to the state courts. In

addition, the claim was not presented in the Amended Petition

in this case; whatever, the scope of remand may be, it does not

permit Petitioner to add new claims. Finally, and most

importantly, the argument relies on a faulty premise - the

transcript does not reveal that the trial judge would have

excused her if Petitioner made the request. Review of the

transcript reveals that the matter had been discussed between

attorney, and a plan of action mapped out, before the record was

made. Tr. at 1025, lines 1-18. Clearly, a decision had been

reached before the judge was summoned. Petitioner was asked,

by his trial attorney and not the judge, “is it your decision to

keep her on the jury?” Petitioner answered in the affirmative.

Tr. at 1026. At no time did the judge declare that he would

remove Juror Tuggle if asked, so counsel could not have been

ineffective for failing to accept the offer.

The claim that counsel should have argued Juror Tuggle

was biased was also procedurally defaulted because it was not

included in the Second Amended Petition. It also was not

advanced in the Amended Petition in this case. Moreover, the

Court does not believe that Juror Tuggle was removable for this

reason. The outcome might be different had she expressed

these views before trial, but she made these statements after

Petitioner rested.

Finally, the Court holds that the trial court was not obligated

to remove Juror Tuggle for misconduct. The bailiff did not

report that Ms. Tuggle was watching the news or reading the

newspapers, and the fact that she knew about the fate of one of

the most notorious serial murderers in this country is not

grounds for her removal. Although she was discussing the case

before final instructions were read, the Court does not believe

this would have required her removal. A discussion of the case

with fellow jurors after the evidence is in the sort of “minor

misconduct” that a trial court would have the discretion to

decide does not warrant removal.

Relying on the circumstances discussed in Part II.D,

Petitioner contends that allowing Tuggle to remain on the jury

violated his right to a fair and impartial jury. Tuggle’s inclusion

on the jury was not objected to at trial and was not raised on

direct appeal and therefore has been defaulted. and the Eighth

Circuit’s remand does not affect this conclusion. Petitioner

cannot rely on his attorney’s failure to object as cause and

prejudice to excuse this default because, as discussed in Part

I1.D, Petitioner did not present the state courts with a claim that

his attorney should have alleged juror bias. See Oxford v. Delo,

59 F.3d 741, 747 (8" Cir. 1995), cert. denied, 517 U.S. 1124

(1996) (“the performance of trial counsel is irrelevant to the

cause [and prejudice] inquiry where the petitioner fails to raise

the ineffective assistance of trial counse) claim in state court

proceedings.”). Moreover, as discussed in the previous section,

the record demonstrates that Juror Tuggle became “biased

against Petitioner” after she heard of all the evidence; this is not

a constitutional violation.

F. tive istan te Counsel:

Failure to A 1 Improper R val of Juror for Caus

The merits of this issue were addressed in the December 4.

1998 Order and were affirmed on appeal. White, 206 F.3d at

781-82. Further discussion is not required.

G._ Ineffective Assistance of Trial Counsel:

Failure to Object to Removal of Juror

During the small-group voir dire, Venirewoman Brison

(who was number 33 on the panel) discussed her concerns and

hesitations about voting in favor of the death penalty. T.Tr. at

276-77, 284. The prosecutor’s motion to strike her for cause

was denied. T.Tr. at 289-91. Petitioner contends that the

prosecutor “slipped” her onto a list of jurors who had been

removed for cause, and his trial counsel’s failure to remedy this

error constituted ineffective assistance of counsel.

This claim of ineffective assistance was not presented in the

Second Amended 29.15 motion (as observed in the December

4, 1998 Order at 33 n.16) and for that reason remains defaulted

notwithstanding the Eight Circuit’s decision. The December 4,

1998 Order includes an alternative holding, rejecting the claim

on the merits. The scope of remand does not require the Court

to revisit issues that were addressed on the merits, and for that

additional reason the Court concludes that further discussion ts

not warranted.

H._ Ineffective Assistance of Triai Counsel:

Voir Dire, Part Il

Petitioner contends that during the death penalty portion of

voir dire, his trial counsel “did not conduct any questioning

about jurors’ views on the death penalty. He did not ask if there

were jurors who would automatically impose the death penalty.

He did not attempt to rehabilitate jurors who had reservations

about the death penalty.” Petitioner’s Supplemental Brief on

Remand at 65. The prosecutor asked the prospective jurors

whether they could “realistically consider” both punishments.

which elicited the jurors’ views on the subject. The prosecutor

followed up with additional questions when appropriate,

including particularly whenever an answer indicated inability to

consider both punishments. The Court does not discern (and

Petitioner does not identify) any prejudice from tnal counsel's

failure to follow up with a virtually identical question.

Petitioner’s argument regarding the failure to attempt

rehabilitation is the same argument advanced in Part I.E and 1s

rejected for the same reason.

Petitioner also faults trial counsel for failing to “ask jurors

any questions about issues that were going to arise in the case

such as witness identification and misidentification, graphic

photographic evidence, children as victims and witnesses. and

drug use.” Id. Questions designed to elicit views about drug

use were asked during general voir dire. Tr. at 52-71. The

issue was also discussed during individual voir dire. Petitioner

does not suggest what more trial counsel should have done, nor

does he explain how the failure to do more resulted in

prejudice. There could be no deficient performance under

Strickland for failure to discuss children as victims because

none of the three victims were children; the children were

witnesses. With respect to the remaining issues, even if one

assumes the failure to raise these topics in voir dire constituted

deficient performance, Petitioner’s claim of prejudice is purely

speculative.

This claim was procedurally defaulted. The issue is not

raised in the Second Amended 29.15 Motion. Some, but not

all, aspects of this claim were raised in the First Amended 29.15

Motion; those that were not have never been presented to the

Missouri courts and for that reason are defaulted. Those that

were presented in the First Amended 29.15 Motion were

addressed by the trial court. but were not raised on appeal to the

Missouri Supreme Court. see Respondent's Exhibits F. S. and

CC (Petitioner's Bnefs filed with the Missouri Supreme Court)

and for that reason those claims were defaulted. See generally

O'Sullivan v, Boercke]. $26 U.S. 838 (1999).

1V : f Trial

ailure iugating Evi

This claim was not presented to the state courts at any time,

including in the Second Amended 29.15 Motion. The claim has

been defaulted.

| Vinletion:

ane k of Mitigating Evid

This claim was not included in the Second Amended 29.15

motion and was procedurally defaulted. In addition, the Court's

December 4, 1998 Order included an alternative holding on the

merits, and the mandate does not direct this Court to reconsider

issues previously addressed on the merits. For both of these

reasons, further discussion is not warranted.

L. Trial C 1's Conflict of

The merits of this issue were addressed in the December 4,

1998 Order and were affirmed on appeal. White, 206 F.3d at

782-83. Further discussion is not required.

IV ] el:

Myriad of Claj

The Court’s December 4, 1998 Order rejected this claim on

the merits, holding that the claim was not cognizable. Further

discussion is not required.

N\. Due Process Violation: Abandonment by

Post-Conviction Counsel

This issue was disposed of on the merits in the December 4.

1998 Order, so further discussion is not required.

This issue focused primarily on the Missouri Supreme

Court's determination that his First Amended 29.1] 5 Motion was

insufficient under state law to secure him a hearing. The

December 4, 1998 Order addressed the merits (by incorporating

the earlier discussion in Part I1.D of that Order), so further

discussion is not required.

_ Process: Rule 29.15' li

This claim was previously rejected on the merits.

ail n 1eW Willi

This issue was not raised in the Second Amended 29.15

Motion or at any other time in the Missouri Courts, so it

remains defaulted. In addition, the December 4, 1998 Order

observed that the claim lacked merit because Williams’

affidavit indicated she had spoken to trial counsel. For both of

these reasons, further discussions are not warranted.

This claim was not presented to the state courts at any time,

including in the Second Amended 29.15 Motion, and for that

reason has been defaulted. In any event, the Court holds that

whether opening ¢ atemerit should be made at the beginning of

trial or immediately before the defendant presents his case in

chief is a classic example of a strategic decision that cannot be

second-guessed under Stnckland.

ive Assi al Cou

Fai o Hire rt

Petitioner contends his trial counsel was ineffective for

failing to hire an expert to testify that those who use crack

cocaine - such as Kinney and Black - suffer damage to their

ability to perceive and remember events. The issue was raised

in Petitioner’s pro se 29.15 Motion (as Ground S), but was not

raised in either the First Amended 29.15 Motion or the Second

Amended 29.15 Motion. The Missouri Supreme Court held

that the claim was not properly pleaded and that Petitioner did

not establish what the expert’s testimony would have been.

White v. State, 939 S.W.2d 887, 898 (Mo.) (en banc), cert.

denied 522 U.S. 948 (1997); see also Judgment dated August

30, 1995, at 3 (trial court’s rejection of this issue).

In Part II.D of the December 4, 1998 Order, the Court held

that violation of Missouri's pleading rules constituted a

procedural requirement, and claims dismissed for failure to

obey those rules were defaulted. The Eight Circuit declared that

its holding “makes it unnecessary to consider the adequacy of

the state pleading rules held to bar most of the claims in the first

amended petition.” White, 206 F.3d at 780 n.4. The state

pleading rules are relevant to this issue because this issue was

not raised in the Second Amended 29.15 Motion that the Court

of Appeals has instructed the Court to consider. The only place

it is raised is in the pro se motion, and there it is raised in a

manner that does not comply with the state pleading rules. The

Court incorporates its discussion from Part II.D of the

December 4, 1998 Order and reaffirms its conclusion that the

claim has been defaulted.

The Court held this issue to be defaulted and. as an

alternative holding, rejected the claim on the merits.

Consequently, this claim does not need to be re-examined on

remand.

on anny repay oF mee Pom : bj he Vid TF

in this claim, Petitioner contends he was im jail awaiting

trial on an unrelated robbery charge when he was placed in a

videotaped lineup. He alleges that his attorney in the robbery

Case was not contacted prior to the lineup, and his trial counsel

in this case was ineffective for failing to object to the use of the

lineup for this reason. This claim was not presented to the state

courts in any pleading (including the Second Amended 29.15

Motion) and remains defaulted; in addition, the Court

incorporated the subsequent discussion in Part IV.Z and noted

that the claim lacked merit because Moore v. Illinois, 434 U.S.

220, 224, 227 (1977) does not require the presence of counsel

when a person is shown in a videotaped lineup. This issue need

not be discussed further for the independent reasons that (1) the

claim was defaulted, and the Eighth Circuit's decision does not

alter that conclusion, and (2) this Court previously addressed

the merits, and the Eighth Circuit declared that issues

previously addressed on the merits need not be addressed again.

y ) | = .

a ; : h Detective Gil

This claim was not included in the Second Amended 29.15

Motion (or in any other pleading filed in state court), and for

that reason has been defaulted.

Ww Vv of Tn nsel:

Fail bi ) e LI

Challenges and Certain Strikes for Cause

Petitioner contends that the prosecutor utilized peremptory

challenges to eliminate five jurors who had “conscientious

scruples” against the death penalty and six jurors who expressed

difficulty believing witnesses who used illegal drugs. He also

claims that his trial counsel failed to object to two of the

prosecutor's requests to strike jurors for cause.

The first aspect of this claim was addressed on the merits

when the Court held that it was barred by Teague v. Lane, 489

U.S. 288, 316 (1989). The second aspect is clearly lacking in

merit. Venireman Heman agreed that he did not know if he

“could be fair to both the State and the defendant” because of

his views regarding drugs. Tr. at 333. There is no indication as

to what counsel should have done, and agreeing to strike Mr.

Heman for cause was reasonable given that the murder was

related to a drug transaction and the jurors would be assessing

the penalty if Petitioner was found guilty. In addition to her

views about drugs, Venirewoman Meysenburg declared that she

did “not take stress very well” and was suffering from a

migraine headache after just one day of the jury selection

process. Tr. at 370-71. She also revealed that she would

“probably” vote automatically for life without parole if

Defendant were found guilty. Tr. at 369. It is not clear whether

the basis for the strike for cause was Ms. Meysenburg’s views

regarding drugs, her inability to consider the death penalty, or

her health, Tr. at 384; regardless, the record reveals that the

strike for cause was appropriate so failing to object was not

ineffective assistance.

7 aC .

Fail oop ene ay te ney rene : *s Closi Dur

Penalty Phase

Petitioner argues that various aspects of the prosecutor's

closing argument during the penalty phase were improper. and

trial counsel was ineffective for failing to object. This claim

was raised in the First Amended 29.15 Motion, where tnal

counsel was described as failing “to object to all aspects of the

State's penalty phase argument since at no time was the

argument directed to those aspects of this crime or this Movant

which would justify a sentence of death.” First Amended 29.15

Motion, §2(J) (emphasis in original). The Missoun Supreme

Court heid the claim was defaulted because it was not pleaded

with sufficient particularly. White, 939 S.W.2d at 902.

The Second Amended 29.15 Motion contains greater

particularly, identifying six specific statements from the

prosecutor's argument that he alleged to be improper. Second

Amended 29.15 Motion 42(u). In this Amended Petition in this

Court, Petitioner identified a total of ten allegedly improper

comments. Those comments that were not presented in the

Second Amended 29.15 Motion were not brought to the state

courts’ attention at any time, and for that reason cannot form the

basis for relief.

“The test for prosecutorial misconduct has two parts. First,

the remarks must have been improper, and second, the remarks

must have been so prejudicial as to deprive the defendant of a

fair trial.” Young v. Bowersox, 161 F.3d 1159, 1162 (8" Cir.

1998). cert. denied, 528 U.S. 880(1999). Needless to say, if the

remarks were not improper, there is no unfair prejudice to be

gauged and the second component of the analysis is

unnecessary. However, in the event an improper comment is

revealed, it must be remembered that the standard of prejudice

is relatively high. “The petitioner must show that the alleged

improprieties were ‘so egregious that they fatally infected the

proceedings and rendered his entire trial fundamentally unfair.’

Moore v. Wyrick, 760 F.2d 884, 886 (8" Cir. 1985). Under this

~ -

Standard, a petitioner must show that there is a reasonable

probability that the error complained of affected the outcome of

the trial - - ¢.e.. that absent the alleged impropriety, the verdict

probably would have been different.” Newton v. Armontrout.

885 F.2d 1328, 1336-37 (8" Cir. 1989). cert. denied, 497 U.S.

1038: (1990) (second quotation omitted); see also Darden \.

Wainnght, 477U.S. 168, 181 (1986). In evaluating the potential

for prejudice, the Court must consider “(1 ) the type of prejudice

that arose from the remark; (2) whether defense counsel did

anything in his argument to minimize the prejudice, (3) whether

the jury was properly instructed: and (4) whether there is a

reasonable probability that the outcome of the [proceeding]

would have been different .... Young 161 F.3d at 1162. With

regard to the third element, the fact that the jury was generally

instructed that arguments of counsel are not evidence is

insufficient to thwart a showing of prejudice. E.g.. Antwine v.

Delo, 54 F.3d 1357, 1364 (8" Cir. 1995), cert. denied, 516 U.S.

1067 (1996); Newlon. 885 F.2d at 1337. With these dictates in

mind, the alleged instances of misconduct presented in the

Second Amended Rule 29.15 Motion can be considered.

1. In broaching this theory that Don Wright was killed as part

of an effort to eliminate witness, the prosecutor said

“t flor the first time we get to explain to [Petitioner] and

show him that he’s left us with no choice. There's only

one punishment, and that's that the pay the ultimate

penalty for this ultimae crime. Leamon White must be

sentenced to death.

Supplemental Tr. at 35. In context, this statement does not

declare that the jury must vote to impose the death penalty, but

rather legitimately expresses the prosecutor's view that the

penalty should be imposed because Wright was killed to

prevent any witnesses from identifying Petitioner.

2. While explaining the need for the jury to consider the

existence of aggravating factors. the prosecutor said

During voir dire, because you hadn't heard the

evidence, because we can't talk about what's going to

go on in this stage, | couldn't tell you, “You're going to

find him guilty,” and because of the nature of this case

aggravating circumstances are automatic. But you have

to find them. And your jury foremen will have to write

out the exact language that is contained in these

instructions.

ld, at 36. Petitioner contends that this statement “imp)|ied) that

if the jury found any aggravating circumstance, they had to

impose death.” Amended Petitioner, § 212(b). This is not a

proper characterization of the statement. Considering the text,

the message conveyed 1s that in finding Petitioner guilty of first

degree murder and thereby agreeing with the prosecutor's

theory of the case. they had already essentially found some of

the aggravating factors to exist. The statement could also be

understood as referring to the aggravating circumstance based

on Petitioner's prior convictions, a finding on this point, given

the nature of the evidence, could also be characterized as

“automatic.” Regardless, the topic being discussed is the

existence of aggravating circumstances, and the statement does

not suggest that the imposition of the death penalty itself is

automatic.

3. | The prosecutor argued that the jury could consider the

deterrent effect of the death penalty. Petitioner has not

explained why this argument is improper, and at least three

Courts of appeal have held the argument is not improper. Lesko

vy. Lehman, 925 F.2d 1527, 1545 (3d Cir.), cert. denied, 502

U.S. 898 (1991); Coleman v. Brown, 802 F.2d 1227, 1239(10"

Cir. 1986), cert. denied, 482 U.S. 909 (1987); Drake v. Kemp,

762 F.2d 1449, 1458 (11" Cir. 1985) (en banc). cert denied. 478

U.S. 1020 (1986).

4. __In an argument similar to the preceding one, Petitioner

faults the prosecutor for arguing that the death penalty serves as

retribution. The allegation of error is rejected for the reasons

previously expressed.

5. The prosecutor asked the jury to consider the gruesomeness

of the crime. Supplemental Tr. at 42, 44. This argument was

not improper because one of the statutory aggravating factors

submitted for the jury’s consideration was whether the murder

was “outrageously or wantonly vile, horrible, or inhumane.”

All the prosecutor did was ask the jury to consider the available

evidence on this issue.

6. In the rebuttal portion of the closing argument, the

prosecutor told the jury that “anybody along the way, if they

don’t do their job, then Leamnon White wins.” Supplemental Tr.

at 45. Petitioner argues that this statement “lessened the jurors’

sense of responsibility for imposition of the death penalty,”

Amended Petition, § 212(1), but does not explain this assertion.

The Court holds the comment is too nebulous to have much

impact, and it is certainly to insubstantial to have resulted in any

prejudice.

X_LIneffective Assistance of Appellate counsel. Vi

ee" “en iranda Wai

This claim was disposed of on the merits in the December

4, 1998 Order, so further discussions is not required.

scenes ~~~ aan

This claim was disposed of on the merits in the December

4, 1998 Order, so further discussion is not required.

AA. Actual Innocence

In this claim, Petitioner argued that this actual innocence of

the crime justified issuance of the wnt. The claim was

considered and rejected on the merits, so re-examination on

remand is not appropriate.

Vv Tnal sel: Fai t

Discuss Plea Offer

This claim was never presented to the state courts in any

form, so it has been, and remains, procedurally defaulted.

Lead Trial Counsel

This claim was not presented in the Second Amended 29.15

Motion. In addition the December 4, 1998 includes an

alternative holding. rejecting the claim on the merits. For these

reasons, the claim is rejected.

DD. Judicial Bias During Post-Conviction F tings, P

]

This Court's rejection of the issue was affirmed by the

Eighth Circuit. White, 206 F.3d at 783.

EE. Judicial Bias During Trial

This claim of trial error was not raised on direct appeal to

the Missouri Supreme Court and thereby was procedurally

defaulted. The default could not be excused even if the claim

100

was included in the Second Amended Rule 29.15 Motion -

which it was not. This claim has been defaulted. and there is no

basis for excusing the default.

= G victio

This argument was disposed of on the merits in the

December 4, 1998 Order. In addition, the issue is very similar

to the one discussed in Part I1.DD herein (Part IV.DD in the

December 4, 1998 Order), and the ruling on that issues was

affirmed on appeal.

5 ectiv , Trial

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