101 F.3d 588
Samuel Lee Mcdonald,
Michael Bowersox, Appellee.
Circuits, 8th Cir.
McMILLIAN, MAGILL, and MORRIS SHEPPARD ARNOLD,
MAGILL, Circuit Judge.
Samuel Lee McDonald, a death
row inmate in Missouri state prison, was
convicted and sentenced to death by a jury on
February 24, 1982, for the May 16, 1981 shooting
of an off-duty police officer. After repeated
filings for postconviction relief in Missouri
state court, McDonald filed his first federal
petition for a writ of habeas corpus in 1989.
The district court
denied McDonald's petition in 1995. McDonald now
appeals the district court's decision. McDonald
argues that the district court erred in failing
to hold an evidentiary hearing to establish his
claim of ineffective assistance of trial counsel
and that his constitutional rights were violated
by the following: (1) the state trial court's
failure to appoint a psychiatric expert to help
McDonald prepare his defense; (2) the
ineffective assistance of trial counsel; (3) an
improper penalty phase argument by the state;
(4) improper trial court conduct; (5) the trial
court's refusal to grant McDonald relief from
the aggravating circumstance that the offense
was committed for the purpose of receiving money;
(6) the trial court's failure to grant
McDonald's motion for a judgment of acquittal;
and (7) an improper jury instruction regarding
mitigating circumstances. We affirm the decision
of the district court that denied McDonald a
writ of habeas corpus.
On May 16, 1981, Robert
Jordan, an off-duty police officer, and his
eleven-year-old daughter went to the Forest
Package Liquor Store in St. Louis, Missouri, to
buy snacks for the weekend. They arrived at the
store around 11 p.m. At the time, Jordan was
dressed as a civilian. However, in compliance
with his police department's official policy,
Jordan was carrying his concealed service
Meanwhile, McDonald and his
girlfriend, Jackie Blue, had been out driving in
the vicinity of the liquor store for several
hours. Shortly before 11 p.m., McDonald parked
the car a couple of blocks from the store and
told Blue that he would be back soon. He exited
the car and then walked to a street corner near
the Forest Package Liquor Store.
When Jordan and his daughter
left the store, McDonald confronted them with a
handgun. McDonald fired, wounding Jordan in the
chest and left arm. Jordan's daughter ran back
into the store, and from there she witnessed her
McDonald stood over Jordan
with his handgun pointed at Jordan. Jordan
handed McDonald his wallet, which contained
Jordan's police badge. Jordan's daughter
testified that she could see her father's badge
in his wallet from where she was standing.
McDonald began to turn away from Jordan, but he
then turned back again and fired another shot
into Jordan's chest.
As McDonald fled with the
wallet, Jordan managed to fire several shots
with his service revolver, hitting McDonald
three times. Jordan then stumbled back into the
store and asked for the police. He died shortly
McDonald made his way back to
Blue's car and asked her to take him to the
hospital. McDonald soon changed his mind,
however, and asked her to take him to a friend's
house for medical attention. When they found
that the friend was not there, McDonald stuffed
his shirt down a sewer drain and instructed Blue
to take him to a veterans hospital. At the
hospital, he told the medical staff that he had
been shot in a robbery that took place in a part
of town different from where he had robbed and
Despite this story, the
police soon discovered that McDonald was the one
who had shot and killed Jordan. The police found
Jordan's wallet in the back of the car owned by
Blue, and retrieved McDonald's blood-soaked
shirt from the drain pipe. McDonald was arrested
for Jordan's murder, and stood trial in Missouri
state court for the crime. At trial, the robbery
and shooting were described by Jordan's eleven-year-old
daughter as well as two other eyewitnesses.
McDonald was convicted by a
jury of having killed Jordan, an off-duty police
officer, "for the purpose of receiving money or
any other thing of monetary value...." State v.
McDonald, 661 S.W.2d 497, 500 (Mo.1983) (en banc)
(McDonald I ), cert. denied,
471 U.S. 1009 , 105 S.Ct. 1875, 85 L.Ed.2d
The jury sentenced McDonald
to death and the Missouri Supreme Court affirmed
both the conviction and the sentence. Id.
McDonald filed a pro se motion in Missouri state
court for postconviction relief and for an
evidentiary hearing, pursuant to Missouri
Supreme Court Rule 27.26. After counsel was
appointed and amended motions were filed, a four-day
evidentiary hearing was held in October 1986. A
Missouri state court denied McDonald's motion
for postconviction relief on January 20, 1987.
See McDonald v. State, 758 S.W.2d 101, 103 (Mo.Ct.App.1988)
(McDonald II ). The Missouri Court of Appeals
affirmed that decision. Id.
In 1989, McDonald filed pro
se his first petition for federal habeas corpus
relief. He filed an amended petition in 1990 and
requested an evidentiary hearing in 1991. The
district court granted the motion for an
evidentiary hearing on December 1, 1992.
McDonald v. Delo, 897 F.Supp. 1224, 1235 (E.D.Mo.1995)
(McDonald III ).
However, the district court
subsequently vacated that order and entered a
judgment denying habeas relief in 1995. See id.
at 1236. In a thirty page opinion, the district
court addressed McDonald's fifty-plus claims,
many of which the district court found to be
procedurally barred. McDonald now appeals the
district court's decision to deny McDonald an
evidentiary hearing as well as seven of the
claims rejected by the district court.
We review the district
court's findings of fact for clear error,
Fairchild v. Lockhart, 979 F.2d 636, 639 (8th
Cir.1992), cert. denied,
509 U.S. 928 , 113 S.Ct. 3051, 125 L.Ed.2d
735 (1993), and we review the district
court's conclusions of law de novo. Hendrix v.
Norris, 81 F.3d 805, 807 (8th Cir.1996). "In
conducting habeas review, a federal court is
limited to deciding whether a conviction
violated the Constitution, laws, or treaties of
the United States." Estelle v. McGuire,
502 U.S. 62 , 68, 112 S.Ct. 475, 480, 116
L.Ed.2d 385 (1991) (citing 28 U.S.C.
2241). Accordingly, "[a] federal court may not
re-examine a state court's interpretation and
application of state law." Schleeper v. Groose,
36 F.3d 735, 737 (8th Cir.1994); see Estelle,
502 U.S. at 67-68, 112 S.Ct. at 480 ("[I]t is
not the province of a federal habeas court to
reexamine state-court determinations on state-law
Pursuant to 28 U.S.C. 2254(d)
(1994), we presume state court findings of fact
to be correct in habeas proceedings unless the
petitioner establishes, the respondent admits,
or the record shows otherwise or the petitioner
produces evidence that convincingly establishes
that the state court's findings were erroneous.
See generally Thompson v. Keohane, --- U.S.
----, ---- - ----, 116 S.Ct. 457, 463-64, 133
L.Ed.2d 383 (1995); see also Wayne v. Benson, 89
F.3d 530, 534 (8th Cir.1996) (construing 28
McDonald argues that the
district court erred when it denied his request
for an evidentiary hearing, thereby preventing
him from establishing his claim of ineffective
assistance of counsel.
We have held that in order
for a habeas petitioner to be entitled to an
evidentiary hearing in federal court, he must
show "both [ (1) ] cause for his failure to
adequately develop the facts material to his
ineffective assistance claim in the
postconviction state court hearing and [ (2) ]
actual prejudice resulting therefrom;
alternatively, petitioner must show that a
fundamental miscarriage of justice would result
from the denial of an evidentiary hearing in
federal court." McCann v. Armontrout, 973 F.2d
655, 658 (8th Cir.1992) (construing Keeney v.
Tamayo-Reyes, 504 U.S. 1, 10-12, 112 S.Ct. 1715,
1720-22, 118 L.Ed.2d 318 (1992)), cert. denied,
507 U.S 942, 113 S.Ct. 1342, 122 L.Ed.2d 724
Although McDonald has not had
an evidentiary hearing in federal court, he had
an evidentiary hearing in state court in 1986.
See McDonald II, 758 S.W.2d at 103. The state
court considered at that time numerous claims of
ineffective assistance of counsel. Both the
state court that held the evidentiary hearing
and the Missouri Court of Appeals that reviewed
the state court's decision found that McDonald
was not denied effective assistance of counsel.
See McDonald II, 758 S.W.2d at 103, 105-06.
McDonald has not alleged any
cause that prevented him from adequately
developing the facts material to his ineffective
assistance of counsel claim during his October
1986 state court postconviction evidentiary
hearing, which was held over the course of four
days. Furthermore, McDonald has not shown actual
prejudice; the evidence is overwhelming that
McDonald is factually guilty of murder. Finally,
having considered McDonald's claim of
ineffective assistance of counsel on the merits,
infra at § V, there is ample support for our
conclusion that denying McDonald an evidentiary
hearing does not result in a fundamental
miscarriage of justice.
McDonald next argues that he
is entitled to a writ of habeas corpus because
he was denied the assistance of a psychiatric
expert during the guilt and penalty phases of
his trial. We disagree.
McDonald indicated to his
counsel that he might have a mental disease or
defect in January 1982. See McDonald II, 758 S.W.2d
at 105. He made this claim after reading about
Vietnam Stress Syndrome, which is also called
Posttraumatic Stress Disorder. Id. By this time,
McDonald's counsel had already started to pursue
a claim of mental disease or defect as a defense
strategy. McDonald's counsel had already filed a
"Late Notice of Intent to Rely on the Defense of
Mental Disease or Defect," id., presumably
pursuant to Mo.Rev.Stat. § 552.030.
The state court denied this
motion because it was a nonstandard motion that,
had it been granted, would have entitled the
defense to keep the results of the psychiatric
examination from the prosecution. Id. at 105 n.
2. In addition, by January 1982, McDonald's
trial counsel had already filed three motions
for the appointment of a psychiatrist, which had
been denied. Id. at 105. These requests for
psychiatric assistance were also denied because
they were "not in conformity with statutory
provisions." Id. This was presumably because the
governing statute, Mo.Rev.Stat. § 552.030, did
not allow for nondiscoverable psychiatric
evaluations. See McDonald III, 897 F.Supp. at
Responding to McDonald's
January 1982 suggestion that she explore Vietnam
Stress Syndrome as a defense, McDonald's counsel
sent for and obtained McDonald's military
records. The records spanned three years, from
1965 to 1968, and included the eleven-month
period McDonald spent in Vietnam.
The records specifically
stated that McDonald did not suffer from "any
psychosis, neurosis, organic brain syndrome, or
mental deficiency." Id. Nevertheless, after
reviewing these records, McDonald's counsel
filed yet another request for a confidential
psychiatric evaluation. This request was once
again conditioned on the evaluation's being
nondiscoverable by the prosecution. It was also
denied. Id. The United States Supreme Court has
held that a defendant is constitutionally
entitled to the assistance of a psychiatric
expert to help prepare his defense "when [he]
has made a preliminary showing that his sanity
at the time of the offense is likely to be a
significant factor at trial...." Ake v.
Oklahoma, 470 U.S. 68, 74, 105 S.Ct. 1087, 1091,
84 L.Ed.2d 53 (1985). This entitlement also
applies to the penalty phase of a trial. Id. at
84, 105 S.Ct. at 1096.
However, to be entitled
constitutionally to psychiatric assistance under
Ake, McDonald had the burden to demonstrate to
the state trial court "a reasonable probability
that the requested expert would aid in the
defendant's defense and that the denial of
expert assistance would result in an unfair
trial." Guinan v. Armontrout, 909 F.2d 1224,
1227 (8th Cir.1990), cert. denied,
498 U.S. 1074 , 111 S.Ct. 800, 112 L.Ed.2d
Applying this standard to the
facts before us, we conclude that McDonald
failed to carry his burden. After reviewing the
four motions for psychiatric assistance filed by
McDonald's trial counsel, we agree with the
district court's finding that McDonald's trial
counsel never demonstrated to the state trial
court that there existed a reasonable
probability that an expert would aid in
McDonald's defense or that denying the expert
assistance would result in an unfair trial. See
McDonald III, 897 F.Supp. at 1237-38.
Although McDonald's trial
counsel repeatedly asserted that psychiatric
expertise was needed to help her decide whether
to mount a defense of mental disease or defect,
this mere assertion does not satisfy the showing
required by Ake.
McDonald also asserts that he
was entitled to a psychiatric evaluation under
Missouri state law. Under Missouri state
procedural law, a defendant is automatically
entitled to a mental evaluation when he files a
plea of not guilty by reason of mental disease
or defect or when he files a timely notice of
his intent to rely on a mental defect defense.
Mo.Rev.Stat. § 552.030 (1981).
McDonald never pled not
guilty by reason of mental disease or defect and
the Missouri Supreme Court specifically found
that, as a matter of Missouri state law,
McDonald's counsel did not properly file a
motion informing the court of an intent to rely
on an insanity defense. McDonald I, 661 S.W.2d
Although McDonald filed a
Late Notice of Intent to Rely on a Defense of
Mental Disease or Defect, the Missouri Court of
Appeals found that this motion "was a
nonstandard motion that omit[ted] the phrase 'the
defense hereby gives notice of intent to rely
upon mental disease or defect as a defense.' "
McDonald II, 758 S.W.2d at 105 n. 2.
Thus, according to the Missouri Court of Appeals
and the Missouri Supreme Court, McDonald's trial
counsel never filed a motion that triggered
Missouri's obligation to provide McDonald with a
psychiatric expert under Mo.Rev.Stat. § 552.030.
We are bound by the state
courts' interpretation of state law in federal
habeas proceedings unless a defendant's
conviction violates the United States
Constitution or federal law. Estelle, 502 U.S.
at 67-68, 112 S.Ct. at 479-80.
Because we can see no constitutional violation
resulting from the Missouri Supreme Court's
interpretation of Missouri state law, we are
bound by the state court's holding that McDonald
was not entitled to the use of a psychiatric
expert under state law.
McDonald argues that his
Sixth Amendment right to the effective
assistance of counsel was violated. Specifically,
he faults his counsel's failure to file a motion
notifying the trial court of McDonald's intent
to rely on a defense of mental disease or defect.
Furthermore, McDonald faults his counsel's
failure to present an argument of mental disease
or defect during the penalty phase of his trial.
To prevail on his ineffective
assistance of counsel claim, McDonald has the
burden of showing (1) that his counsel's
assistance fell below an objectively reasonable
standard and (2) that he was prejudiced by his
counsel's ineffective assistance. See Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 2064, 80 L.Ed.2d 674 (1984); Antwine v.
Delo, 54 F.3d 1357, 1365 (8th Cir.1995), cert.
denied, --- U.S. ----, 116 S.Ct. 753, 133 L.Ed.2d
700 (1996). The claim of ineffective assistance
of counsel is a mixed question of law and fact.
Carter v. Hopkins, 92 F.3d 666, 669 (8th
We review the district
court's factual findings for clear error while
reviewing its conclusions of law de novo. Id.
McDonald has argued repeatedly that his trial
counsel's strategy of asking for a
nondiscoverable psychiatric examination was
unreasonable because such a strategy had already
been rejected by the Missouri Court of Appeals
in State ex rel. Jordon v. Mehan, 597 S.W.2d 724
(Mo.Ct.App.1980). Jordon, however, is readily
distinguishable from McDonald's case.
Jordon held that persons
invoking Mo.Rev.Stat. § 552.030 were not
entitled to a preliminary, nondiscoverable
psychiatric examination to determine whether a
mental defense should be used, 597 S.W.2d at
726-27, whereas the strategy of McDonald's
counsel was to obtain a nondiscoverable
psychiatric examination prior to invoking §
552.030. A court may have been more amenable to
allowing a nondiscoverable examination prior to
formal invocation of § 552.030.
In contrast to what McDonald
claims, McDonald's trial attorney did not
duplicate the strategy rejected in Jordon
because McDonald's counsel had not yet invoked §
552.030 when she requested a preliminary,
nondiscoverable examination. The very premise of
McDonald's argument of ineffective assistance of
counsel, that his attorney used a strategy that
had been previously rejected in Jordon, is
Moreover, with respect to the
merits of McDonald's claim, the Missouri Court
of Appeals also considered and rejected
McDonald's claim of ineffective assistance of
counsel, detailing at length the reasons why "[c]ounsel
did all that was possible based on the known
facts." McDonald II, 758 S.W.2d at 105. We agree
with the Missouri appellate court's conclusion
that McDonald's trial counsel did not act
Given the paucity of evidence
that McDonald suffered from a mental disease or
it was not objectively unreasonable for
McDonald's trial counsel to forego an
examination. It was not objectively unreasonable
to conclude that the possible benefits of having
McDonald undergo a discoverable psychiatric
examination outweighed the risk of allowing the
prosecution to obtain an examination beneficial
to the state's case against McDonald.
Similarly, McDonald cannot
show that he was prejudiced by his attorney's
strategy of not invoking § 552.030. Based on the
1986 deposition testimony of McDonald's own
expert, a mental examination before trial most
likely would only have hurt McDonald's defense.
Since McDonald's counsel was unable to convince
the state court to allow a nondiscoverable
examination, an unhelpful mental examination
would have been discoverable by the prosecutor's
office and almost certainly used to McDonald's
detriment. Therefore, the decision of McDonald's
counsel to forego a mental examination may have
helped rather than prejudiced McDonald's defense.
We also reject McDonald's
claim that his counsel was ineffective because
she failed to present an argument that McDonald
suffered from a mental disease or defect during
the penalty phase of trial. As we have detailed
above, there was minimal evidence tending to
prove that McDonald had a mental disease or
defect. Had McDonald's counsel made the argument
that McDonald suffered from a mental disease or
defect, there was substantial evidence available
to the government to rebut the argument.
In these circumstances, not
only is it likely that the jury would have
rejected McDonald's argument--thereby failing to
satisfy Strickland 's prejudice prong--but it
might well have held McDonald's efforts to avoid
responsibility for his actions against him. We
cannot say that it was objectively unreasonable
for McDonald's counsel to believe that
presenting arguments about McDonald's mental
status may have been detrimental to her client,
and McDonald has therefore failed to satisfy
either prong of the Strickland test.
McDonald argues that he is
entitled to a writ of habeas corpus because of
alleged misconduct by the state trial court.
McDonald claims that the state court violated
his rights under the Due Process Clause
by (1) warning a witness not to breach his duty
of confidentiality; (2) leaving the bench to
investigate a courtroom disturbance; (3) asking
defense counsel not to place an exhibit so as to
obstruct the defendant's view of the witnesses;
(4) introducing the victim's relatives to the
jury; (5) allowing the testimony of the victim's
widow; (6) allowing the victim's widow to
display grief in front of the jury; and (7)
allowing certain questions about prior
consistent statements of McDonald's girlfriend,
We may not grant a writ of
habeas corpus based on the alleged misconduct of
a state trial court unless the state trial
court's behavior deprived a petitioner of a
constitutional right such as due process. See
Pickens v. Lockhart, 4 F.3d 1446, 1454 (8th
Cir.1993), cert. denied,
510 U.S. 1170 , 114 S.Ct. 1206, 127 L.Ed.2d
553 (1994); see also Cooley v. Lockhart,
839 F.2d 431, 432 (8th Cir.1988). To show a
deprivation of due process, a petitioner must
show that "the challenged error [was] gross,
conspicuously prejudicial or of such import that
the trial was fatally infected." Rhodes v.
Foster, 682 F.2d 711, 714 (8th Cir.1982); see
also Culkin v. Purkett, 45 F.3d 1229, 1235 (8th
Cir.), cert. denied, --- U.S. ----, 116 S.Ct.
127, 133 L.Ed.2d 76 (1995).
None of McDonald's claims of
alleged trial court errors rise to the level of
a due process violation. McDonald's first three
objections--to the trial judge's admonitions
about confidentiality, the trial judge's leaving
the bench to investigate a courtroom disturbance,
and the trial judge's asking defense counsel not
to place an exhibit in a way that would block
the defendant's view of the witnesses--are
without merit. With respect to the judge's
admonitions about confidentiality, the judge
merely reminded a witness who had a preexisting
duty of confidentiality that the witness must
respect that duty.
With respect to the second
objection, the trial judge seems to have left
the bench briefly only to investigate a minor
courtroom disturbance. As for McDonald's third
objection, the trial court spoke to defense
counsel about the placement of a certain exhibit
to insure that McDonald's view of the witnesses
would not be obstructed. Certainly such an act
is not improper, given that McDonald has a
constitutional right to view the witnesses who
testify against him. See Coy v. Iowa, 487 U.S.
1012, 1016, 108 S.Ct. 2798, 2800, 101 L.Ed.2d
857 (1988). Indeed, each of these individual
acts appear to have been proper exercises of
judicial authority, and could not constitute any
violation of due process, and certainly were not
so grossly and conspicuously prejudicial or of
such import that the trial was fatally infected.
The gravamen of McDonald's
fourth through seventh objections concerns the
admission of certain testimonial evidence. In a
federal habeas petition, this Court may only
review state evidentiary issues when " 'the
asserted error infringed a specific
constitutional protection or was so prejudicial
as to deny due process.' " Griffin v. Delo, 33
F.3d 895, 904 (8th Cir.1994) (quoting Wallace v.
Lockhart, 701 F.2d 719, 724 (8th Cir.), cert.
464 U.S. 934 , 104 S.Ct. 340, 78 L.Ed.2d
308 (1983)), cert. denied, --- U.S. ----,
115 S.Ct. 1981, 131 L.Ed.2d 869 (1995). After
careful review of the record, we can find no
specific constitutional protection that was
violated nor can we see how any of the evidence
challenged by McDonald so prejudiced him as to
deny him due process.
McDonald next argues that he
is entitled to habeas relief because the
prosecutor's closing argument violated
McDonald's rights under the Eighth Amendment and
the Due Process Clause.
Citing Caldwell v.
Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86
L.Ed.2d 231 (1985), McDonald first asserts that
his Eighth Amendment rights were violated when
the prosecutor told the jurors that their
decision to impose the death penalty would be
reviewed many times to insure against mistakes.
In Caldwell, the Supreme Court held that it is a
violation of the Eighth Amendment "to rest a
death sentence on a determination made by a
sentencer who has been led to believe that the
responsibility for determining the
appropriateness of the defendant's death rests
elsewhere." Id. at 328-29, 105 S.Ct. at 2639.
In a later case, however, the
Supreme Court held that Caldwell is not to be
applied retroactively. Sawyer v. Smith, 497 U.S.
227, 229, 110 S.Ct. 2822, 2824, 111 L.Ed.2d 193
(1990) (holding that Caldwell cannot serve as a
basis for federal writs of habeas corpus for
convictions made final before Caldwell was
decided in 1985); see also Teague v. Lane, 489
U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d
334 (1989) (generally, a petitioner seeking a
writ of habeas corpus may not rely on a rule of
constitutional law established after his
conviction became final). Because McDonald's
conviction became final in 1983, two years
before Caldwell was decided, McDonald cannot
rely on the Caldwell decision in seeking a writ
of habeas corpus.
McDonald also asserts that
various statements in the prosecutor's closing
argument violated McDonald's right to due
process. Having reviewed the prosecutor's
closing argument in its entirety, we cannot say
that McDonald was prejudiced by the prosecutor's
argument. This is particularly so because it is
uncontroverted that the jury was properly
instructed not to consider the prosecutor's
closing statement as evidence and, taking into
account the violent nature of the crime McDonald
committed, there is no reasonable probability
that the outcome of the sentencing phase would
have been different had the prosecutor not made
his allegedly prejudicial remarks. See generally,
Miller v. Lockhart, 65 F.3d 676, 682-85 (8th
Cir.1995) (discussing when a prosecutor's
closing argument violates a defendant's due
McDonald contends that there
was insufficient evidence for the jury to find
the aggravating circumstance for sentencing that
McDonald murdered Officer Jordan for the purpose
of receiving money.
In his initial petition for
postconviction relief, McDonald argued to the
Missouri Supreme Court that the trial court had
misapplied Missouri statutory law by failing to
cabin narrowly the aggravating circumstance of
committing an offense "for the purpose of
receiving money or any other thing of monetary
value." McDonald I, 661 S.W.2d at 502. McDonald
argued that this aggravating offense could never
apply to a murder committed during the course of
a robbery. Id. The Missouri Supreme Court
rejected McDonald's argument and held instead
that the "aggravating circumstance ... was
properly submitted and supported by substantial
evidence." Id. at 505.
McDonald argued to the
district court below that there was insufficient
evidence for the jury to have found the
aggravating circumstance of committing an
offense for the purpose of receiving money and
that the state trial court therefore erred by
failing to dismiss this aggravating circumstance.
The district court held that McDonald was
procedurally barred from bringing this claim.
McDonald III, 897 F.Supp. at 1245. In the
alternative, the district court held that this
claim has no merit.
Id. We agree that this claim is procedurally
We will not consider a
petitioner's claim to federal habeas relief if
the habeas petitioner fails both (1) to exhaust
his state remedies and (2) to preserve his claim
for review according to state procedural rules.
See Satter v. Leapley, 977 F.2d 1259, 1261-62
To avoid procedural default
of a federal claim in state court, a petitioner
must present his federal constitutional claim to
the state courts, relying on "a specific federal
constitutional right, a particular
constitutional provision, a federal
constitutional case, or a state case raising a
pertinent federal constitutional issue...."
Kelly v. Trickey, 844 F.2d 557, 558 (8th
Cir.1988) (internal quotations omitted); see
Myre v. Iowa, 53 F.3d 199, 200 (8th Cir.1995).
A petitioner who presents a
state law claim in state court will avoid
procedural default with respect to a federal
claim if "the claim the petitioner made in state
court is synonymous with an accepted principle
of federal law." Myre, 53 F.3d at 201 (interpreting
Satter, 977 F.2d at 1262, which holds that a
petitioner necessarily raises a due process
challenge to the conviction if the petitioner
challenges the sufficiency of the evidence to
convict in a state proceeding).
We have recognized that,
although it is possible to raise a state law
claim that is so closely related to a federal
constitutional claim as to be synonymous, it is
equally possible to raise a state law claim that
rests solely on state law principles. See Myre,
53 F.3d at 201. Similarly, the Supreme Court has
"indicated that it is not enough to make a
general appeal to a constitutional guarantee as
broad as due process to present the 'substance'
of such a claim to a state court." Gray v.
Netherland, --- U.S. ----, ----, 116 S.Ct. 2074,
2081, 135 L.Ed.2d 457 (1996).
Here, McDonald's state court
claim did not directly challenge the sufficiency
of evidence but was instead premised on the
argument that the state trial court misapplied
the relevant Missouri state statute. As such,
his claim did not automatically present a
federal due process challenge.
Indeed, McDonald's claim
before the state court was narrowly concerned
with state law statutory interpretation. It was
therefore not synonymous with a due process or
any other federal constitutional claim. Because
McDonald did not bring a constitutional
challenge before the state courts in his
postconviction proceedings, McDonald has
procedurally defaulted on his sufficiency of
McDonald can only overcome
this procedural bar to our review of his due
process claim if he can make a showing of cause
for the procedural default and prejudice
resulting from the alleged constitutional
violation, or "that a fundamental miscarriage of
justice would otherwise result because he is
actually innocent of capital murder or the death
penalty." Zeitvogel v. Delo, 84 F.3d 276, 279
(8th Cir.), cert. denied, --- U.S. ----, 117
S.Ct. 368, 136 L.Ed.2d 258 (1996); see also
Coleman v. Thompson,
501 U.S. 722 , 750, 111 S.Ct. 2546, 2565,
115 L.Ed.2d 640 (1991). McDonald has not
attempted to make a showing of cause and
prejudice or a fundamental miscarriage of
justice, nor do we see any basis in the record
before us for such a showing.
McDonald claims that he is
entitled to habeas relief because the state
presented insufficient evidence to prove his
deliberation in killing Jordan, an essential
element of the state's case against McDonald. He
argues that the state trial court should have
granted his motion for acquittal. We disagree.
The Missouri Supreme Court
specifically addressed McDonald's insufficiency
of the evidence claim with respect to
deliberation. The court construed a "deliberate
act" to be "one performed in a cool and
deliberate state of mind" and specifically noted
that "[n]o particular [length of] time is
required to permit a finding of deliberation."
McDonald I, 661 S.W.2d at 501.
Applying this standard, the
Missouri Supreme Court held that a jury could
have found that McDonald acted with deliberation
when he killed Jordan. Id. The United States
Supreme Court has held that a writ of habeas
corpus based on a claim of insufficiency of the
evidence will be granted only if "it is found
that upon the record evidence adduced at the
trial no rational trier of fact could have found
proof of guilt beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct.
2781, 2791-92, 61 L.Ed.2d 560 (1979); see Rhode
v. Olk-Long, 84 F.3d 284, 288 (8th Cir.), cert.
denied, --- U.S. ----, 117 S.Ct. 232, 136 L.Ed.2d
Moreover, we are bound by the
Missouri Supreme Court's interpretation of the
meaning of a deliberate act under Missouri law.
See Estelle, 502 U.S. at 67-68, 112 S.Ct. at
479-80; Schleeper, 36 F.3d at 737. The record
shows that McDonald wounded Jordan, took his
wallet, started to turn away, and only then
turned around to fire the shot that killed
Jordan. McDonald I, 661 S.W.2d at 501. Based on
this evidence, we conclude that a rational trier
of fact could have found proof of deliberation
beyond a reasonable doubt.
McDonald argues that he is
entitled to habeas relief because the jury
instructions given by the state trial court on
the use of evidence of mitigating circumstances
violated the Eighth and Fourteenth Amendments.
challenges the last part of the thirtieth jury
instruction. It read as follows:
If you unanimously decide
that a sufficient mitigating circumstance or
circumstances exist which outweigh the
aggravating circumstance or circumstances found
by you to exist, then you must return a verdict
fixing defendant's punishment at imprisonment
for life by the Division of Corrections without
eligibility for probation or parole until he has
served a minimum of fifty years of his sentence.
II J.A. at 523.
Pointing to the word "unanimously,"
McDonald argues that this instruction prevented
the jury from considering all mitigating
circumstances and thereby violated his Eighth
and Fourteenth Amendment rights. He points to
Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860,
100 L.Ed.2d 384 (1988), in which the United
States Supreme Court found unconstitutional jury
instructions that led the jury to believe that
they could only return a verdict of life
imprisonment if they unanimously agreed to the
specific factors they would consider to be
mitigating. Id. at 384, 108 S.Ct. at 1870; see
also McKoy v. North Carolina, 494 U.S. 433, 439,
110 S.Ct. 1227, 1231, 108 L.Ed.2d 369 (1990) (reiterating
the concern that one holdout juror should not be
able to prevent the other jurors from
considering mitigating evidence).
McDonald's Mills claim fails
on the merits. This case is factually almost
identical to Griffin v. Delo, 33 F.3d 895 (8th
Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct.
1981, 131 L.Ed.2d 869 (1995). In Griffin, the
defendant challenged a jury instruction
identical to jury instruction number thirty in
the instant case. Compare Griffin, 33 F.3d at
905 (jury instruction number twenty-two), with
II J.A. at 523 (jury instruction number thirty).
The jury instruction challenged by Griffin was
followed immediately by a jury instruction that
read as follows:
Even if you decide that a
sufficient mitigating circumstance or
circumstances do not exist which outweigh the
aggravating circumstance or circumstances found
to exist, you are not compelled to fix death as
the punishment. Whether that is to be your final
decision rests with you.
Griffin, 33 F.3d at 905. In
McDonald's trial, jury instruction number thirty
was followed by a jury instruction identical to
the above quoted instruction from Griffin. II
J.A. at 524.
In Griffin, we decided that
the challenged jury instruction, an instruction
identical to the one now before us, was not
contrary to Mills and McKoy and was not
otherwise unconstitutional. Griffin, 33 F.3d at
906. Accordingly, we hold that jury instruction
number thirty did not violate McDonald's
constitutional rights under Mills.
For the reasons stated above,
we affirm the district court's decision to deny
McDonald a writ of habeas corpus.
Moreover, the psychiatrist
said that people with Posttraumatic Stress
Disorder have "a diminished capacity to
deliberate," II J.A. at 364, and not, as
McDonald would argue, that they completely lack
the capacity to deliberate. Also, the
psychiatrist said that, although this stress
disorder may "contribute" to an explanation of
McDonald's offense, the disorder could not
provide a total explanation. II J.A. at 366.
McDonald proffers novelty as
the cause of his procedural default. He points
out that his Mills claim did not exist at the
time McDonald was petitioning the state courts.
We have previously rejected this argument. See
Stokes v. Armontrout, 893 F.2d 152, 155-56 (8th
Cir.1989) (holding that although novel
constitutional principles may sometimes suffice
to show prejudice and cause, Mills-type claims
are not novel).
Furthermore, McDonald is
unable to show that a fundamental miscarriage of
justice will result if we do not consider his
underlying claim. To determine whether a
petitioner's underlying claim should be
considered so as to avoid a fundamental
miscarriage of justice, we ask "if the jury had
been told, in compliance with Mills, that any
mitigating circumstance, even if not unanimously
found by the jury, could be weighed, would it
probably have fixed the punishment at life in
prison?" Stokes, 893 F.2d at 156 (internal
quotations omitted). McDonald asserts that the
answer is yes because at least one juror is "likely"
to have been swayed by testimony of McDonald's
mental health, especially in light of his
service in Vietnam.
McDonald's argument is not
convincing. The challenged jury instruction is
not far from an ideal Mills instruction. Here,
although the word "unanimously" was used, it was
not stressed in such a way that made it probable
that reasonable jurors would believe that they "were
precluded from considering any mitigating
evidence unless all 12 jurors agreed on the
existence of a particular such circumstance."
Mills, 486 U.S. at 384, 108 S.Ct. at 1870.