# Appendix — Roper v. White

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0523%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 1157

## Text

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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

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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.

1]

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

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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.

13

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).

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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

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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.

16

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).

17

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.

18

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

19

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?

20

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

21
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

oe

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

24

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.

25

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.

26

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

27

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

28

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!

29

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.

30

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

31

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

32

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

33

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

34

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.

35

»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

36

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

37

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. .

38

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.

39

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

40

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 /

4)
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.

42

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

43

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

44

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.

45

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]

46

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

47

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

48

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.

49

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.

50

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 >

5]

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.

Se

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.

53

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 —

54

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

55

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

56

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

57

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.

58

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

59

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.

60

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

6]

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

63

United States Court of Appeals,
Eighth Circuit.

Leamon WHITE, Appellant,
v.
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

64

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.

65

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.

1.

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

66

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

67

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.

68

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.

69

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

70

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

71

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

72

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:

73

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

74

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.

7S

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

76

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

77

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0523%3A2. Public record. Not legal advice.