State of Missouri v.
744 S.W. 3d 762 (Mo. banc 1988)
Robert Murray was executed
on July 26, 1995
On December 6, 1985 at 12:05 a.m. a man identified as William Murray
entered an apartment at 2331 A Park in St. Louis, Missouri. Present
in the apartment were Jeff Jackson, Craig Stewart, Gladys Nutall and
Claudia Hennings. Murray left the apartment, but returned about
thirty minutes later with two other men identified as Robert Murray,
his brother and Jesse Craig.
Upon arrival, William Murray announced a holdup
and told everyone to "get on the floor". Robert Murray and Jesse
Craig entered the apartment after the holdup as announced. One of
the victims, Claudia Henings, observed Robert Murray wearing a mask
and when she confronted him by name he removed it.
Robert Murray held a gun on the four victims
while a search of the apartment was conducted by William Murray and
Jesse Craig. Robert Murray took Ms. Henning’s purse and Mr.
Jackson’s wallet while William Murray took Ms. Nutall’s purse and Mr.
Stewart’s wallet. William Murray then asked Mr. Jackson if anyone
else was coming to the apartment that night. Mr. Jackson told him
that another person was coming around 3:00 a.m. to give him a ride
to work. The perpetrators decided to stay and wait.
Toward the end of their wait William Murray then
told Ms. Nutall to go in the kitchen with him where he raped her
while Robert Murray looked on. During the rape Robert Murray also
sexually assaulted Ms. Hennings in the living room. After being
bound and gagged Mr. Jackson and Mr. Stewart were taken into the
kitchen where the Murrays hit them and threatened to stab them in
order to persuade them to give up more money.
In the meantime, Ms. Hennings made her escape by
jumping out of the second floor window and running for help. She
told police that as she was running she heard gunshots being fired.
Ms. Nutall reported that she was able to run down the stairs as Ms.
Hennings was jumping out the window, but before leaving the
apartment she looked into the kitchen and saw Robert Murray hold Mr.
Stewart up and shoot him in the back. Ms. Nutall then went to a
nearby grocery store where she told a security guard what had
When police arrived at the scene they found Mr.
Jackson and Mr. Stewart lying in the kitchen apparently dead from
gunshot wounds. An autopsy report confirmed the observation of the
Robert Murray was later arrested on December 7,
1985 and identified in a lineup as one of the perpetrators. In a
statement to the police, Murray offered information about the crime
scene that had not been revealed to him by the police which further
12/6 - The bodies of Jeffry Jackson and Craig Stewart are discovered
in a St. Louis City apartment.
1/9 - An indictment was filed in the Circuit Court of St. Louis City
charging Robert Murray and is brother William Murray with the first
degree murders of Jeffrey Jackson and Craig Stewart and two counts
each of robbery and armed criminal action.
7/16 - The first degree murder charges against Robert Murray are
severed from the robbery and armed criminal action charges at Mr.
12/8 - Robert Murray’s trial on two counts of first defree murder
began in St. Louis City, Missouri, the Honorable Brendan J. Ryan
12/4 - Robert Murray was convicted of two counts of first degree
murder and the jury recommended a sentence of death for each murder.
2/6 - A motion for new trial was denied, and Robert Murray was
sentened to death for both killings.
2/11 - Notice of Appeal filed with the Missouri Supreme Court.
5/15 - Pro se post-conviction motion under Missouri Supreme Court
Rule 29.1 5 filled in the Circuit Court of St. Louis City.
8/8 - Amended Rule 29.1 5 post-conviction motion filed.
9/8 - The Supreme Court of Missouri affirs the denial of
petitioner’s motion for post-conviction relief.
9/26 - The amended Rule 29.1 5 motion is denied by the Circuit Court
of St. Louis City following an evidentiary hearing.
10/3 - United States Supreme Court denies certiorari in the direct
29.1 5 appeal.
8/1 - The Missouri Supreme Court affirms the denial of the Rule 29.1
2/20 - The United States Supreme Court denies certiorari on
petitioner’s appeal of the denial of his Rule 29.1 5 motion.
3/1 - Petition for writ of habeas corpus filed in the United States
District Court of the Eastern District of Missouri.
4/2 - Amended petition for the writ of habeas corpus filed.
7/31 - Second amended petition for the writ of habeas corpus filed.
4/8 - Second amended petition for the writ of habeas corpus denied.
6/3 - Motion to alter or amend judgment denied.
7/8 - Notice of Appeal to the Eighth Circuit Court of Appeals filed.
11/13 - New counsel appointed and case remanded to the Federal
District Court by the Eigh Circuit Court of Appeals for filing of
third amended petition in the District court to allow new counsel to
present additional claims.
3/13 - Third amended petition for habeas corpus fild.
8/23 - Third amended petition for the writ of habeas corpus denied.
9/6 - The eighth Circuit Court of Appeals affirms the denial of
petitioner’s third amended petition for the writ of habeas corpus.
6/12 - The United States Supreme Court denies certiorari on
petitioner’s habeas corpus action.
6/30 - The Eighth Circuit Court of Appeals issued its mandate.
7/5 - The Missouri Supreme Court sets July 26, 1995 as Murray’s
Missouri Executes A Man Convicted Of Murdering
July 27, 1995
32, was put to death by injection today for murdering two men whom
his brother had taken responsibility for killing.
Mr. Murray was convicted of shooting the men,
both St. Louis cab drivers, in a 1985 robbery. He insisted all along
that his brother, William Murray, was the killer.
William Murray did not say he was the killer
until 1991, after he had been sentenced to life in prison for his
role in the robbery and four years after his brother was sentenced
The brothers met for the last time hours before
As Mr. Murray lay on a gurney in the execution
chamber, his final word was "Peace."
Gov. Mel Carnahan rejected Mr. Murray's request
for a stay. Mr. Murray had exhausted his court appeals.
After witnessing the execution, John Mahone, a
half brother of one of the victims, Jeffery Jackson, said he was
relieved. "Justice was served," he said.
Mr. Jackson, 27, and Craig Stewart, 26, were
killed on Dec. 6, 1985, in Mr. Jackson's apartment in St. Louis.
They were shot in the back at close range.
According to trial testimony, the victims and two
women were in the apartment when William Murray arrived and
announced a holdup. Robert Murray and another man then entered.
Robert Murray held the pistol while his brother ransacked the
apartment and robbed the four people, the women testified.
William Murray then raped one of the women, the
authorities said, while Mr. Stewart and Mr. Jackson were bound and
One woman escaped by jumping from a second-story
window. She testified that she heard shots as she ran down the
street to get help.
The second woman fled down the stairs. She
testified that she glanced in the apartment and saw Robert Murray
shoot Mr. Stewart.
34 F.3d 1367
Robert Anthony MURRAY, Appellant,
Paul K. DELO, Appellee.
United States Court of Appeals,
Submitted April 13, 1994.
Decided Sept. 6, 1994.
Rehearings and Suggestions for Rehearing En Banc Denied Nov. 25,
Before RICHARD S. ARNOLD,
Chief Judge, HENLEY, Senior Circuit Judge, and BEAM, Circuit
RICHARD S. ARNOLD, Chief Judge.
This petition is Robert
Anthony Murray's first for federal habeas corpus relief. The
murder of which he was convicted occurred nine years ago, on
December 6, 1985, in Missouri. A jury convicted Murray of two
counts of first-degree murder under Mo.Rev.Stat. Sec. 565.020
(1986) for the killing of two robbery victims, Jeffrey Jackson
and Craig Stewart, and sentenced him to death on both counts.
In this petition, Murray
raises a number of claims, all of which the District Court
rejected, and we address each in turn. We conclude that each
issue Murray raises in this petition is either procedurally
barred or without merit for some other reason; therefore, we
Before addressing the merits
of Murray's claims, we summarize the procedural history of this
case. After trial, the Missouri Supreme Court affirmed Murray's
convictions and sentence on direct appeal. State v. Murray, 744
S.W.2d 762 (Mo.), cert. denied, 488 U.S. 871, 109 S.Ct. 181, 102
L.Ed.2d 150 (1988). Murray then filed a state-court motion to
set aside or vacate judgment and sentence pursuant to
Mo.Sup.Ct.R. 29.15, which was denied after an evidentiary
hearing. The Missouri Supreme Court affirmed the denial of post-conviction
relief. Murray v. State, 775 S.W.2d 89 (Mo.1989), cert. denied,
493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990).
Murray next filed a pro se
petition for a writ of habeas corpus in the United States
District Court for the Eastern District of Missouri. That Court
appointed counsel to represent Murray, and counsel then filed
two amended petitions. After reviewing those petitions, the
District Court issued an order denying the writ on the merits.
Murray v. Delo, 767 F.Supp. 975 (E.D.Mo.1991).
Petitioner's counsel filed a
notice of appeal to this Court. Then, before briefing, the
petitioner filed, pro se, motions to discharge his court-appointed
counsel, for appointment of new counsel, to remand to the
District Court, and for leave to file an amended petition.
In support of these motions,
Murray argued that the lawyer responsible for filing the two
amended petitions had never communicated with him and had filed
the petitions without his authorization or participation. On
November 13, 1991, we granted the motions and appointed new
counsel. Murray filed a third amended petition, which, after
review, the District Court denied. Murray v. Delo, No.
90-370C(8) (E.D.Mo., August 23, 1993). Murray now appeals from
Meanwhile, on August 20, 1992,
Murray filed a petition for writ of habeas corpus under
Mo.Sup.Ct.R. 91 and a motion to recall the mandate of that Court.
On September 22, 1992, the Supreme Court of Missouri denied the
habeas corpus petition and rejected the motion to recall the
After a brief discussion of
the facts of this case, we address each of Murray's arguments.
We take the facts from the Missouri Supreme Court opinion. State
v. Murray, 744 S.W.2d 762. That Court's recitation of the facts
is supported by the evidence introduced at the trial.
Claudia Hennings and Gladys
Nutall went to Jeffrey Jackson's St. Louis apartment sometime
after 11:00 p.m. on December 5, 1985. Jackson's friend, Craig
Stewart, was also present at the apartment.
Hennings, Nutall, Jackson, and
Stewart drank alcohol, smoked marijuana, and took cocaine while
watching television. Sometime after midnight, William Murray,
the defendant's older brother, arrived at the apartment and
talked with Jackson in a bedroom. Shortly thereafter, William
left the apartment.
He returned a half hour later
and pulled a gun. He told everyone that this was a holdup and to
get on the floor. While Hennings, Nutall, Jackson, and Stewart
were lowering themselves to the floor, Robert Murray and a third
person entered the apartment. Robert Murray was carrying a gun
and wearing a ski mask.
Hennings had known William
Murray for eight years and considered him to be her best friend;
she had also known the defendant for eight years. When she heard
Robert Murray speak, she recognized his voice. She told him so
and told him to remove his mask. He rolled the mask up.
William asked Jackson what he
had in the house, and Jackson told him to look in the dresser in
the bedroom. William and the third participant searched the
entire apartment, constantly asking the victims for money or
guns. While William searched, the defendant held a gun on the
four victims. William took Nutall's purse and Stewart's wallet,
and Robert took Hennings's purse and Jackson's wallet. Although
they dumped the contents of all of these items into a pillowcase,
they told the victims that the money was insufficient.
They demanded more money and
asked whether anyone else would be coming to the apartment.
Jackson told William that Tracy Adams would be coming by around
3:15 a.m. to take him to work. William asked Jackson if Adams
would have any money or guns with him, and Jackson said he did
not know. William and the others decided to wait for Adams and
kept the victims on the floor.
After several hours had passed,
William kicked Nutall in the side. He then took her into the
kitchen, raped her, and sent her back into the living room.
While she was being raped, Nutall saw the defendant looking in
from the living room at her and William. In addition, the
defendant sexually assaulted Hennings by rubbing her genital
Shortly thereafter, the
Murrays tied Jackson's and Stewart's hands behind their backs,
and gagged and blindfolded them. Then, Robert Murray went into
the kitchen and found a butcher knife and some steak knives. The
assailants took Jackson and Stewart into the kitchen, placed
them on their knees, and began hitting them. Throughout the
beating, the Murrays repeatedly said that the money they had
found was not enough and demanded more. Then, the Murrays picked
up the knives and began stabbing them into the floor around
Jackson and Stewart.
Hennings, who was watching the
assaults from the living room, got up off the floor and
attempted to jump out a window. The defendant caught her, told
her not to try it again or he would cut her throat, and ordered
her back to the floor. When the defendant turned around to
return to the kitchen, Hennings ran into the bedroom and slammed
the door closed. She then threw herself through the closed
second-floor window, landing on the grass outside, where she
heard gunshots. Hennings ran down the street screaming and
called the police from a neighbor's house.
Meanwhile, one of the
assailants had discovered that Hennings was gone and returned to
the kitchen to inform the others. Nutall then looked into the
kitchen and saw Robert Murray hold Stewart up and shoot him in
the back. She ran out of the apartment to a nearby grocery
store, where she told a security guard that a man had been shot
in the apartment.
During the time of Nutall's
escape, the police responded to Hennings's phone call. She told
them that Robert and William Murray were two of the assailants
and provided descriptions.
The police also responded to
the call from the security guard. Both women returned to the
apartment with the police and discovered that Jackson and
Stewart were dead in the kitchen. Each man had been shot twice
in the back. Three bullets were recovered from the bodies, and
analysis indicated that all three were fired from the same gun.
The day after the incident,
the police went to Robert Murray's home and arrested him. After
being given his Miranda rights, he denied being present at the
apartment. Later that night, Nutall identified the defendant in
a lineup, and told the police that he was the man she saw shoot
After the police informed the
defendant that he had been identified, he admitted having been
in the apartment, but said that he left before the shooting
began. After being read his rights again, he told the police
that he did not bind, gag, shoot, or kill anyone. According to
the police, he made this statement before being told any details
about the victims' treatment.
We now turn to the legal
issues raised on appeal.
Before we consider other
issues, we must first address the impact of our order remanding
the case to the District Court and appointing new counsel on the
District Court's authority to address the merits of the issues
raised in the amended petition (filed by newly appointed counsel).
Murray argues the District Court erred when it determined that
some of the claims he raised in his third amended petition were
procedurally barred as abusive under 28 U.S.C. Sec. 2254, Rule
9(b). The State argues that any issues raised in the third
amended petition which were not included in the other two
amended petitions are barred by the abuse-of-the-writ doctrine.
The abuse-of-the-writ doctrine
generally prohibits a petitioner from raising claims in a
subsequent habeas petition that could have been, but were not,
raised in the first federal habeas proceeding. McCleskey v. Zant,
499 U.S. 467, 490, 111 S.Ct. 1454, 1468, 113 L.Ed.2d 517 (1991).
The general bar against abusive claims also extends to
successive claims which raise grounds identical to those heard
and decided on the merits in a previous petition, Sawyer v.
Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2518, 120 L.Ed.2d
The respondent bears the
initial burden of pleading abuse of the writ, and, once he or
she does so, the petitioner bears the burden of proving that no
abuse has occurred. McCleskey, supra, 499 U.S. at 494, 111 S.Ct.
at 1470. Normally, once the state pleads abuse of the writ as a
defense, a court must determine why the issue was not raised in
an earlier petition. Smith v. Armontrout, 888 F.2d 530, 540 (8th
Cir.1989). Examples of the types of issues which are prohibited
under the abuse-of-the-writ doctrine include grounds for relief
which were deliberately withheld or which were not filed by
competent counsel. Id. at 540-41. Dismissal of a petition can be
avoided if the earlier petition "was filed and litigated without
[petitioner's] knowledge, participation, or authorization[.]"
Ibid. (citations omitted).
The Supreme Court has carved
out two types of exceptions to the general bar against
successive writs. To qualify for the first exception, a
petitioner must show cause for failing to raise the claim in an
earlier petition, as well as prejudice resulting from that
failure. McCleskey v. Zant, supra, 499 U.S. at 494, 111 S.Ct. at
1470. A court may also proceed to decide the claim on the merits
if the defendant is actually innocent of the crime itself or of
the sentence. Herrera v. Collins, --- U.S. ----, ----, 113 S.Ct.
853, 862, 122 L.Ed.2d 203 (1993).
To qualify for this exception,
the defendant must prove by clear and convincing evidence that "but
for [a] constitutional error, no reasonable juror" would have
convicted him of the crime in question or found him eligible for
the sentence at issue. Sawyer v. Whitley, supra, --- U.S. at
----, 112 S.Ct. at 2523. The scope of the actual-innocence
exception is very narrow. See Dugger v. Adams, 489 U.S. 401, 109
S.Ct. 1211, 103 L.Ed.2d 435 (1989); McCleskey v. Zant, supra.
The inquiry for this Court is not "whether the trier of fact
made the correct guilt or innocence determination, but rather
whether it made a rational decision to convict or acquit."
Herrera v. Collins, supra, --- U.S. at ----, 113 S.Ct. at 861.
Murray's new counsel filed a
third amended petition, the fourth petition overall, with the
District Court. This petition raised several issues which were
not included in the pleadings before the District Court when it
issued the original order denying Murray's writ. The District
Court held that any claims that had also been raised in the
third petition were barred as successive, and that any new
claims raised in the fourth petition were barred as abusive,
under 28 U.S.C. Sec. 2254, Rule 9(b).
Moreover, the District Court held that Murray could not qualify
for any of the exceptions to the abuse-of-the-writ doctrine. We
When we remanded the case to
the District Court, we did so on the basis of a pro se motion
filed before this Court asking us to dismiss Murray's court-appointed
counsel. The essence of Murray's motion before this Court was
that his lawyer was not communicating with him and had not
raised all of the issues before the District Court which Murray
In sending the case back to
the District Court, our intention was for a new court-appointed
counsel to plead and present all of the issues together in one
petition. The purpose of appointing new counsel and remanding
the case was to correct the problems created by the first court-appointed
lawyer, and to ensure that the District Court reviewed, on the
merits, all of the claims Murray raised which he had not already
defaulted by the time he reached the federal habeas corpus stage.
This case can be distinguished
from other cases in which this Court has held that grounds for
relief, raised for the first time in motions filed after a
district court has entered a final order, abuse the writ.
Compare Bannister v. Armontrout, 4 F.3d 1434, 1445 (8th
Cir.1993); Blair v. Armontrout, 976 F.2d 1130, 1134 (8th
Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2357, 124 L.Ed.2d
265 (1993). This case is one of the "rare" cases in which
dismissal for abuse of the writ was improper, because petitions
two and three were filed and litigated without Murray's
knowledge and participation. Smith v. Armontrout, supra, 888
F.2d at 541.
In federal habeas cases
brought by prisoners in state custody who have been sentenced to
death, appointment of counsel is required by statute. 21 U.S.C.
Sec. 848(q)(4)(A), part of the Anti-Drug Abuse Amendments of
1988. We do not think Congress had in mind a lawyer who would
not communicate with his or her client, or who would file a
petition without consultation with or authorization from the
client. To attribute legal effect to such a lawyer's omission of
claims the client wished to raise, would be both unfair in
itself and inconsistent with the purpose of the statute making
appointment of counsel mandatory. Such a result would almost
make nugatory our order of remand, the whole purpose of which
was to let Murray start over again with a clean slate and
The State points out that
McCleskey v. Zant, supra, the main Supreme Court opinion
summarizing the current state of the law on abuse of the writ,
mentions no "exception" for cases involving inattentive or
uncooperative lawyers. We think it would be a mistake to read
McCleskey as a comprehensive statute-like codification. It lays
down general principles. It is no deviation from those
principles to say, as we did in, e.g., Smith v. Armontrout,
supra, that abuse of the writ is not a defense where the former
petition was filed without the knowledge, participation, or
authorization of the client. We hold that abuse of the writ is
no defense to those claims newly included in the third amended
The case of those claims in
the third amended petition that were included in the petitions
previously adjudicated by the District Court is even clearer. We
can see why that Court would not feel called upon to re-decide
claims it had already fully addressed. But on no tenable theory
could this Court be barred from appellate review of the District
Court's dismissal of those claims. Our remand order was entered
before we reviewed the substance of the District Court's
decision on the former petitions.
Murray is entitled by statute,
28 U.S.C. Sec. 1291, to an appeal as of right from that decision.
The fact that a remand took place to allow him to obtain
competent counsel, and that that new lawyer chose to include in
the third amended petition some of the same claims previously
pleaded (perhaps fearing that omitting them could be taken as
some sort of waiver), is no reason whatever to hold that we
cannot now review the District Court's disposition of the
We hold that Murray's third
amended petition is not subject to an abuse-of-the-writ defense,
and we turn to the substance of his claims.
Murray argues that his
conviction and sentence were based on the perjured testimony of
the state's two principal witnesses, Hennings and Nutall, and
that this constitutes a violation of his constitutional rights.
The District Court held that this issue was procedurally barred,
and we agree.
Murray's state-court petitions
did not raise this issue, and, as a result, we cannot address it
unless Murray can qualify for one of the exceptions to the
procedural-bar doctrine. Murray cannot qualify for the cause-and-prejudice
exception, and he does not argue that he can. Therefore, unless
he qualifies for the actual-innocence exception, we are barred
from reaching the merits of his claim. Herrera v. Collins, supra,
--- U.S. at ----, 113 S.Ct. at 862.
In assessing whether to review
Murray's claim on the merits, we must review the evidence to
determine "whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt[,]" not whether "[we believe] that the evidence
at [Murray's] trial established guilt beyond a reasonable doubt."
Id. at ----, 113 S.Ct. at 861 (citations and internal quotations
Thus, our job is not to
determine whether the trier of fact made the correct
determination of guilt or innocence, but to determine whether it
could have made a rational decision to convict the petitioner if
the new evidence Murray now cites had been before it. The
petitioner bears the burden of showing by clear and convincing
evidence, that but for the alleged constitutional violation no
reasonable juror would have found him eligible for the death
penalty under Missouri law. Sawyer v. Whitley, supra, --- U.S.
at ----, 112 S.Ct. at 2517.
Murray's claim is that he is
actually innocent of the crime and that he was convicted because
the witnesses, Gladys Nutall and Gloria Hennings, perjured
themselves. In support of his allegations, Murray points to what
he describes as contradictions in the witnesses' testimony.
He also offers an affidavit
from his brother William, in which William claims that he
committed the acts for which the jury convicted the petitioner;
this affidavit conflicts with the testimony offered at trial by
Nutall and Hennings. Finally, the petitioner offers several
other affidavits filled with statements from people who claim to
have heard William Murray confess to the crimes before the date
of petitioner's conviction.
We have reviewed Nutall's and
Hennings's testimony and, although it was not always exact or
perfectly clear, we conclude that a rational trier of fact could
have believed these witnesses. Moreover, if William had told
petitioner's jury that he, not Robert, killed the two victims,
the jury might have believed him, but it would have been
entirely rational not to.
Furthermore, we conclude that
the after-the-fact affidavits offered by Murray are insufficient
to sustain his claim that the witnesses committed perjury. Even
if believed, the affidavits might show only that the women were
mistaken, which is not the same thing as lying under oath.
In addition, the facts in this
case are similar to those in Herrera v. Collins, supra. In
Herrera, the Supreme Court reviewed a denial of habeas corpus in
a case in which a death-row petitioner argued on the basis of an
affidavit that the affiant, and not the petitioner, was guilty
of the crime.
The Supreme Court held that
the traditional remedy for a claim of actual innocence based on
new evidence, which was discovered too late to file a new-trial
motion, is not federal habeas relief, but executive clemency
under state law. Herrera v. Collins, supra, --- U.S. at ----,
113 S.Ct. at 869. It also held that in a capital case, an
extremely persuasive demonstration of actual innocence might
warrant federal habeas corpus relief if no state avenue existed
in which to process the claim. Ibid. However, before a court can
consider such a claim, the petitioner must meet an "extraordinarily
high" threshold. Ibid. The Supreme Court held that Herrera had
failed to meet this threshold because he proffered affidavits,
over eight years after his trial, which consisted mainly of
hearsay and contained inconsistencies. Ibid.
Murray's affidavits suffer
from many of the same afflictions as Herrera's. Even though the
affidavit from William Murray contains a confession to the crime,
it is highly suspect. William confessed to the crime only after
his own conviction was final. The petitioner has not offered a
sufficient explanation for why his brother is willing to come
forth now and confess, rather than several years ago, during the
trial in which the petitioner's life was at stake.
Instead, William Murray has
offered an affidavit several years after his own brother was
sentenced to death, only after being convicted himself, and
after safely receiving the lesser sentence of life in prison
without parole. The other affidavits likewise are suspect
because they are replete with hearsay and fail convincingly to
answer the question: why now? Moreover, these affidavits contain
significant inconsistencies. Petitioner has failed to bring
himself within the actual-innocence exception to the procedural-bar
Murray also argues that his
conviction and death sentence violate his constitutional rights
because the prosecutor elicited testimony he should have known
was false and made misleading statements to the jury based on
the same testimony. This claim, in essence, comes down to the
fact that two of the witnesses' statements at trial were
inconsistent with earlier statements to the police. Given the
inconsistencies, Murray says, the prosecutor must have known
that the witnesses perjured themselves at trial; therefore, he
committed misconduct by allowing them to testify and by relying
on their testimony in his opening and closing arguments.
Again, the petitioner failed
to raise this claim in his state post-conviction proceedings;
therefore, we hold that this claim is procedurally barred. We
have already held that Murray has failed to establish the cause-and-prejudice
or actual-innocence excuses for not raising the issue of the
perjured testimony in an earlier proceeding.
In addition, the prosecutorial-misconduct
claim is derived from the perjured-testimony claim, which is
itself barred. Finally, it often happens that witnesses
contradict themselves in statements given from time to time.
Such contradictions are material for cross-examination, and may
cause the jury to disbelieve the witnesses. They do not, without
more, establish perjury.
The petitioner next argues
that the death sentence violates his constitutional rights
because it is disproportionate to his responsibility for the
crime. Murray argues that he did not kill or attempt to kill
anyone, nor was he a major participant with the requisite mental
state to be eligible for the death penalty. He offers the above-mentioned
affidavits as support for his version of the night when Jackson
and Stewart were killed. The District Court held that the
evidence in the record supported the death sentence. We agree,
and, having already decided that the affidavits are legally
insufficient, we base our agreement on the facts set out by the
Missouri Supreme Court in its opinion.
Robert Murray, the petitioner,
accompanied his brother and another person to the apartment of
Jeffrey Jackson, one of the murder victims. When the petitioner
entered the apartment, he was masked and holding a gun. While
William Murray and the other participant searched the apartment,
the petitioner held a gun on the four victims. The petitioner
participated in the robbery, taking Claudia Hennings's purse and
In addition, the petitioner
watched while his brother raped Gladys Nutall in the kitchen.
Petitioner sexually assaulted Hennings. He helped bind the two
men, Jackson and Craig Stewart, and then took them into the
kitchen and participated in beating them.
In addition, the petitioner
took a knife and stabbed the floor around Jackson and Stewart.
When Hennings attempted to escape from the apartment, the
petitioner caught her, threatened her, and ordered her back to
the floor. Then she managed to escape. When she did so, she
heard gun shots, presumably those which killed Stewart and
Jackson. Nutall testified that she saw the petitioner hold
Stewart up and shoot him execution-style.
Later, when the police arrived
at the scene, they discovered both Jackson and Stewart dead on
the kitchen floor, each one shot twice in the back. Nutall
identified the petitioner in a lineup, and he admitted to being
in the apartment and gave a statement which revealed facts about
the incident he had not been told by the police.
We review this evidence to
determine whether it was sufficient for the fact-finder to
convict Murray of first-degree murder and sentence him to death.
Petitioner's argument that he was a minor participant is wholly
unpersuasive. The victims in this case were murdered in the
course of a robbery, and the petitioner took an active role in
the circumstances causing the deaths. He held the victims
hostage at gunpoint for three hours.
He sexually assaulted one of
the women. He bound and gagged the two men and participated in
stabbing the floor around the two men who were murdered. He
prevented Hennings from escaping and threatened her with
physical harm if she attempted another escape. And, perhaps most
importantly, trial testimony indicated that he shot at least one
of the men.
The defendant next argues, on
the basis of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73
L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107
S.Ct. 1676, 95 L.Ed.2d 127 (1987), that he did not possess the
requisite degree of mental culpability to be sentenced to death.
We believe that his reliance on these cases is misplaced. Enmund
and Tison are felony-murder cases which apply in situations in
which the defendant was not the shooter. As stated above, the
evidence at trial indicated that the petitioner actually
committed at least one murder, and perhaps both.
The petitioner also argues
that the Missouri Supreme Court did not afford him due process
in giving his case the proportionality review required by
Missouri law, Mo.Rev.Stat. Sec. 565.035.3 (1986). We disagree.
Both defense and prosecution were aware that proportionality was
an issue on direct appeal under Missouri law. Both sides were
free to argue the issue in their briefs and at the oral argument.
The Missouri Supreme Court addressed and decided the issue in
The question of
proportionality involves a comparison with other cases, and the
issue, to be sure, is not soluble in precisely quantifiable
terms. It involves the exercise of discretion and judgment. That
is true of many crucial issues in the law--deciding what a
reasonably prudent person would do in certain circumstances, for
example. We see no unfairness or deprivation of due process in
the Missouri Supreme Court's procedures for exercising a
proportionality review. The federal Constitution of its own
force, of course, requires no such review. Pulley v. Harris, 465
U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984).
argument is that six venirepersons, including two who actually
served as jurors, were biased in favor of the death penalty. The
District Court held that the record supported the Missouri
Supreme Court's conclusion that the venirepersons could follow
the trial court's instructions and consider both alternative
punishments. We agree.
The defendant has a
constitutional right to an impartial sentencing jury. Turner v.
Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986). If a
juror would automatically impose the death penalty on a
convicted murderer, our Constitution prohibits that juror from
participating in sentencing. Ross v. Oklahoma, 487 U.S. 81, 85,
108 S.Ct. 2273, 2276-77, 101 L.Ed.2d 80 (1988). The key issue is
whether a juror's support for the death penalty would prevent
him or her from abiding by the law and following the trial
court's instructions. Wainwright v. Witt, 469 U.S. 412, 424, 105
S.Ct. 844, 852, 83 L.Ed.2d 841 (1985).
We review the entire record,
not individual responses, to determine whether a prospective
juror was qualified. See State v. Smith, 649 S.W.2d 417, 425-26
(Mo.), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246
(1983). When a state trial or appellate court has made a factual
finding on a claim a petitioner raises on habeas corpus, we
defer to that finding if it is fairly supported by the record.
28 U.S.C. Sec. 2254(d); Patton v. Yount, 467 U.S. 1025, 1038,
104 S.Ct. 2885, 2892, 81 L.Ed.2d 847 (1984); Brown v. Lockhart,
781 F.2d 654, 658 (8th Cir.1986) (citation omitted). Whether a
juror is impartial is a question of fact for this purpose.
Patton v. Yount, 467 U.S. at 1036, 104 S.Ct. at 2891.
The petitioner raised this
issue in his appeal before the Missouri Supreme Court. After
reviewing the voir dire for each of the jurors in question, that
Court found that all of the challenged venirepersons had
indicated that they were able to consider both alternative
punishments, and, therefore, the petitioner's constitutional
rights were not violated. State v. Murray, supra, 744 S.W.2d at
The Missouri Supreme Court
specifically found that, although the challenged venirepersons
did at some point equivocate about their ability to consider
both death and life in prison without parole, all also stated
they could consider both. On the basis of this finding, the
Court held that the trial court did not abuse its discretion in
refusing to strike the venirepersons. Id. at 769.
The question is whether these
factual findings have fair support in the record of the trial.
First, we consider the two venirepersons, Regina Williams and
Rosetta Brown, who actually served on the petitioner's jury.
Each was subjected to death-penalty questioning by both the
prosecution and defense counsel.
When Williams was first
questioned by the defense about her position on the death
penalty, the following colloquy occurred:
Defense: "Tell me what your
position is on [the possibility that life without parole would
be a severe enough punishment for premeditated murder]."
Williams: "I believe that if you are
convicted of first degree murder that you should get the death
penalty."Defense: "Okay. And life without parole would be--would
not be a possible punishment in your consideration for
premeditated, deliberate murder?"
T.Tr. 264. Later, the
prosecuting attorney explained to the panel that, under the law,
two punishments were to be considered, and stressed the
importance of following the law. After he had done so, he asked
the entire panel if they could "be open-minded jurors" and
consider both punishments before making a capital-punishment "decision."
Williams joined the panel in responding yes to his question. T.
Later, after the trial court
had considered and rejected defense counsel's motion to strike
Williams as a juror, Williams responded to questions from the
The Court: "All right. And I
am going to ask the second half of that question. Or would you,
because you have found--if you find murder one, would you
automatically assess the death penalty without regard to
listening to the aggravating or mitigating circumstances?"
Williams: "I would consider both."
T.Tr. 302-03. She responded
the same way when asked as part of the panel:
The Court: "All right. Now
yesterday it was said several times, and I want you to look into
your hearts and souls when I ask you this question.... Sometimes
people ... [i]f I ask them some questions feel they are giving
me an answer they think I want to hear. Okay. You all know what
I mean by that? We don't want that. Look into your hearts and
minds again. Will you consider, if we get that far, both
penalties involved? Okay?"
The Court: "No matter what you said before, I
mean, these lawyers are entitled to know, and this defendant is
entitled to know. Will you consider both, if we get that far?
The Court: "Anybody who would not? And we are
not going to try to convince you otherwise. It's just a simple
yes or no."
The Court: "I have everybody's word on that?"
Rosetta Brown's voir dire
followed a similar pattern. When questioned by the prosecution,
she indicated support for the death penalty, but indicated that
she could consider both sentencing options. T. Tr. 234-35.
Later, in response to
questions by defense counsel, she stated that she favored the
death penalty and would impose it in a first-degree case. T. Tr.
259-60. Then, Brown responded to the trial court's panel
questions in a manner identical to Williams. T. Tr. 303-04.
The Missouri Supreme Court
specifically found, on the basis of the above questions and
answers, that these jurors were capable of applying Missouri law
and sentencing the defendant in accordance with the Constitution.
After reviewing the transcripts ourselves, we hold that this
finding has fair support in the record, and we therefore defer
to it. Although both of these jurors stated at some point during
voir dire that they could consider only the death penalty, both
of them also stated that they could consider the full range of
Then, after being reminded of
the law by the trial court, both jurors affirmatively replied
that they could apply the law and consider both punishments.
They repeated this assurance to the trial court in response to
several questions designed to confirm their ability to serve as
unbiased jurors. We agree with the District Court with respect
to these two jurors.
Murray also raises questions
about four other venirepersons, Victoria Alsup, David Fischer,
Carolyn Artega, and Elbert Witte. He argues that because the
Court rejected his attempt to remove these jurors for cause, he
had to use peremptory strikes to remove them. This use of his
peremptory strikes, he argues, violated his right, under the
then-applicable state statute, to have a full panel of qualified
potential jurors before the use of peremptory challenges.
Mo.Rev.Stat. Sec. 546.180.3 (1986), repealed and replaced by
Mo.Rev.Stat. Sec. 494.480 (1989). In addition, according to
Murray, because he was forced to remove these jurors with
peremptory challenges, his constitutional right to due process
Although the Supreme Court has
not specifically decided this question, see Ross v. Oklahoma,
supra, 487 U.S. 81, 108 S.Ct. 2273, the Missouri Supreme Court
appears to have held that defendants had such a right under
Missouri law as of the time Murray was tried. State v. Wacaser,
794 S.W.2d 190, 193 (Mo.1990). However, we need not reach this
issue, because we hold that the District Court did not err in
upholding the Missouri Supreme Court's finding that these four
jurors were able to apply the law fully and to sentence Murray
Beginning with venireperson
Victoria Alsup, we review the voir dire portion of the
transcript. Alsup's answers to defense and prosecution questions
reveal an ability to consider both sentencing options. T. Tr.
232-34. Later, in response to questions from defense counsel,
Alsup indicated that anyone who committed cold-blooded,
premeditated murder should receive the death penalty. T. Tr.
The prosecutor then explained
the law to Alsup, and she responded that she could wait until
the completion of the evidence before making a decision, and
that she would follow the law explained to her by the trial
court. T. Tr. 272-73. Still later, defense counsel questioned
Alsup again, and this time she indicated that although she
thought death would be the appropriate punishment for someone
who committed cold-blooded murder, she would consider all of the
evidence and talk with her co-jurors before reaching such a
conclusion. T. Tr. 282.
Taking Alsup's answers to
prosecution and defense questioning as a whole, we cannot say
that the Missouri Supreme Court's factual findings are incorrect.
Alsup's answers seem inconsistent at first, but after having the
law explained to her, she indicated that she would consider both
sentencing options and would attempt to apply the law as
explained to her by the trial court. This is all that Murray was
entitled to under the law. Wainwright v. Witt, supra, 469 U.S.
at 424-26, 105 S.Ct. at 852-53.
The questioning of Fischer
proceeded in much the same manner. In response to questions from
the prosecutor, Fischer indicated that he supported the death
penalty, that applying it to a particular defendant was a "big
decision[,]" and that he could apply the law in a specific case
to determine the appropriate sentence. T. Tr. 243-44. Then, when
questioned by defense counsel, he indicated that life without
parole would be an insufficient sentence for a cold-blooded,
premeditated killer. T. Tr. 258-59. Later, the prosecutor
questioned the entire panel, explained the law about aggravating
and mitigating circumstances, and asked them whether they could
follow the law as explained. Fischer responded in the
Prosecutor: "Okay. Is there
anyone here on this whole panel that would not do that, that
would not wait until all the evidence is in before you made that
determination as to whether or not to give life with no parole
or the death penalty? Would you all wait, listen to the evidence,
and follow the instructions of law when it talks about--you will
read these instructions that they are going to give you,
aggravating versus mitigating circumstances. That is what the
legislature says you must find before you can even consider the
death penalty. Will you all do that; be open-minded jurors and
do that before you even get to that decision?"
T. Tr. 275. Again, even though
Fischer indicated support for the death penalty as a form of
punishment, he also indicated that he could wait until the
entire process was completed, before voting for or against a
death sentence in this case.
Although venireperson Carolyn
Artega's support for the death penalty was particularly strident,
the pattern of the questions and answers was similar to that of
the other panel members. After indicating to the prosecutor that
she supported the death penalty, she indicated that she
understood it was not an automatic sentence, and that she could
consider all of the evidence before reaching a determination. T.
Were it not for the clarifying
questions from the trial court, we might have needed to proceed
to the question of whether the use of a peremptory strike on
Artega violated Murray's rights. However, after the Court
explained the procedure of the trial and the law involved to
Artega, she indicated that she too could consider the law and
reserve judgement until the completion of the evidence. T. Tr.
The transcript of venireperson
Elbert Witte's responses to questions again reveals a similar
pattern. Witte indicated his support for the death penalty, and
after the prosecution objected to the form of a defense question,
the trial court broke in to the questioning in an attempt to
clarify the situation. After a lengthy explanation of the two-tiered
trial and sentencing process, the Court explained to Witte about
aggravating and mitigating circumstances. T. Tr. 373-74.
Then, after confirming that
Witte would follow the instructions, the trial court asked Witte
if he could consider both life without parole and death. Witte
answered yes. T. Tr. 374-75. Witte's responses are similar to
those of the other venirepersons. His final statements indicate
that he would not impose the death penalty automatically;
instead, he would consider both sentencing options. T. Tr.
On the basis of the entire
voir-dire transcript, we affirm the District Court's holding
with respect to each of the six jurors. In response to questions
from the Court, the prosecution, and the defense, each of the
questioned jurors or venirepersons indicated an ability to
consider the available sentencing options, and to reserve their
decisions until the completion of the process. The trial court's
and Missouri Supreme Court's findings are fairly supported by
Murray's next argument is that
his trial counsel was ineffective because she did not conduct a
reasonable investigation, obtain independent, competent
psychological evaluations, or present diminished-responsibility
and mitigating psychological evidence. Murray urges that, if his
trial counsel had conducted a reasonable investigation, she
would have discovered that he was dominated by his brother,
William. Murray also contends that this evidence, as well as
evidence about his dysfunctional family and abused childhood,
would have reduced the degree of his offense or, at least,
decreased the sentence the jury would have imposed.
In addition, Murray argues
that his trial counsel was ineffective because she did not
object to the trial court's aggravating-circumstance instruction.
The District Court found that all of these contentions, except
the aggravating-circumstance argument, were procedurally barred.
Murray filed a motion for
post-conviction relief under rule 29.15, in which he alleged
ineffective assistance of trial counsel. The Circuit Court of St.
Louis County reviewed his motion and denied it. The Missouri
Supreme Court also reviewed and denied this motion. Murray v.
State, supra, 775 S.W.2d 89. Although Murray now seeks to raise
several issues of ineffectiveness, he did not raise, in state
court, most of the issues he raises in the petition before us
today. We must consider whether he is precluded from raising
Once again, Murray can raise
these new issues only if he can prove cause and prejudice or
actual innocence. And, again, Murray does not contend that he is
eligible for the first exception. However, in his response to
the State's brief, he does argue that this Court should apply
the actual-innocence exception to consider the merits of his
ineffective-assistance claims. The District Court considered his
claims on the merits, but, because we find them barred, we
decline to follow suit.
The same standard applies at
the penalty stage that we discussed in the context of the guilt
phase: to procure a review on the merits of his defaulted claim,
Murray must show by clear and convincing evidence that but for
the alleged constitutional error, no reasonable juror could have
found him guilty of the crime or eligible for the death sentence.
Sawyer v. Whitley, supra, --- U.S. at ----, 112 S.Ct. at 2517;
McCoy v. Lockhart, 969 F.2d 649, 651 (8th Cir.1992), cert.
denied, --- U.S. ----, 113 S.Ct. 3056, 125 L.Ed.2d 739 (1993)
(holding that the Sawyer clear-andconvincing standard applies to
both the guilt and penalty phases of a trial).
In reviewing the ineffective-assistance
claim in the actual-innocence context, we consider, in addition
to the evidence actually offered at trial, the evidence Murray
alleges should have been included. Murray argues that if his
trial counsel had explored an independent psychiatric evaluation
with greater vigor, the evaluation would have shown that Murray
was both under the domination of his brother and under the
influence of drugs at the time of the crime.
Murray urges that these
factors would have prevented the jury from convicting him of
first-degree murder. We disagree. The jury might have been
persuaded by the additional psychological evidence, but it also
could rationally have rejected it. It could have disbelieved the
experts Murray now says trial counsel should have presented; or
it could have believed them but nonetheless concluded, as a
matter of its own moral judgment, that Murray should be held
Next, Murray argues that his
death sentence violated his constitutional rights, because the
jury was unconstitutionally instructed that a finding of
mitigating circumstances had to be unanimous. The petitioner did
not raise this claim in his state, post-conviction review, see
Murray v. State, supra, 775 S.W.2d 89, but we need not pursue
the permutations and combinations of the procedural-bar doctrine
with respect to this claim. We have previously rejected it on
the merits, e.g., Battle v. Delo, 19 F.3d 1547, 1562 (8th
Cir.1994) (alternative holding). This panel is bound by that
holding and it requires us to reject Murray's claim based on
Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384
Murray also argues that the
jury instruction defined "reasonable doubt" in a manner which
allowed the jury to convict him on a lesser standard than
constitutionally required. The Due Process Clause of the
Fourteenth Amendment protects an accused from conviction "except
upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged." In re Winship,
397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368
(1970). Murray raised this claim before the Missouri Supreme
Court and before the District Court; therefore, we consider it
on the merits.
The challenged instruction read:
A reasonable doubt is a doubt based upon
reason and common sense after careful and impartial
consideration of all the evidence in the case.
Proof beyond a reasonable doubt is proof that
leaves you firmly convinced of the defendant's guilt. The law
does not require proof that overcomes every possible doubt. If,
after your consideration of all the evidence, you are firmly
convinced that the defendant is guilty of the crime charged, you
will find him guilty. If you are not so convinced, you must give
him the benefit of the doubt and find him not guilty.
This instruction, Murray
argues, would lead a reasonable juror to believe that a finding
of guilt could rest on a degree of proof less than that required
by the Due Process Clause. In support of this argument, Murray
contends that the words "firmly convinced" equate the burden of
proof in his criminal trial with the less stringent, clear-and-convincing
standard required in some civil cases. Murray cites a Supreme
Court decision, Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328,
112 L.Ed.2d 339 (1990) (per curiam), which found a jury
instruction to be unconstitutional, as support for his argument.
In Cage, the Court held the following instruction
If you entertain a reasonable
doubt as to any fact or element necessary to constitute the
defendant's guilt, it is your duty to give him the benefit of
that doubt and return a verdict of not guilty. Even where the
evidence demonstrates a probability of guilt, if it does not
establish such guilt beyond a reasonable doubt, you must acquit
This doubt, however, must be a
reasonable one; that is one that is founded upon a real tangible
substantial basis and not upon mere caprice and conjecture. It
must be such doubt as would give rise to a grave uncertainty,
raised in your mind by reason of the unsatisfactory character of
the evidence or lack thereof. A reasonable doubt is not a mere
possible doubt. It is an actual substantial doubt. It is a doubt
that a reasonable man can seriously entertain. What is required
is not an absolute or mathematical certainty, but a moral
Id. at 40, 111 S.Ct. at 329 (emphasis
in original) (citations omitted). The Supreme Court found this
instruction to be unconstitutional because it "equated a
reasonable doubt with a 'grave uncertainty' and an 'actual
substantial doubt,' and stated that what was required was a
'moral certainty' that the defendant was [not] guilty." Id. at
41, 111 S.Ct. at 329. According to the Court, the words "substantial"
and "grave" as they are commonly understood, suggest a higher
degree of doubt than that required for acquittal under the
reasonable-doubt standard. Thus, the Court held that an accused
could have been convicted based upon a standard of proof below
that required by the Due Process Clause. Ibid.
We hold that this claim is
barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d
334 (1989). In Teague, the Supreme Court held that as a
threshold issue, a court must consider whether the claim urged
by a habeas petitioner requests a remedy for which the court
would have to craft a new rule. If a court finds that a new rule
would be required, it may not proceed to determine the merits of
that claim, with certain exceptions not here relevant. Id. at
300-01, 109 S.Ct. at 1069-70.
The Court broadly defined the
term "new rule," holding that a "case announces a new rule when
it breaks new ground or imposes a new obligation on the States
or Federal government[ ] ... [or] if the result was not dictated
by precedent existing at the time the defendant's conviction
became final." Id. at 301, 109 S.Ct. at 1070 (emphasis in
original). The effect of Teague is to limit severely the claims
available on habeas.
Applying the Teague new-rule
analysis to this case, we hold that we are prevented from
considering the petitioner's claim because the relief he seeks
would require us to create a new rule, the very action barred by
Teague. Murray argues that the challenged jury instruction
violated his constitutional rights because the trial court's
instruction on "reasonable doubt" contained the term "firmly
Murray attempts to analogize
the instruction used at his trial to one found unconstitutional
by the Supreme Court in Cage. The result for which Murray argues
is not dictated by Cage or any other precedent. We first note
that the term "firmly convinced" is not comparable to the
phrases--grave uncertainty, actual substantial doubt, and moral
certainty--criticized by the Court in Cage.
Moreover, although the Supreme
Court has not overruled Cage, a decision announced this term
certainly weakened it. In Victor v. Nebraska, --- U.S. ----, 114
S.Ct. 1239, 127 L.Ed.2d 583 (1994), the Supreme Court held that
two instructions, one in a California case and one in a Nebraska
case, using words somewhat similar to those found
constitutionally problematic in Cage, were valid.
Considering the reasonable-doubt
instructions in their entirety, the Court held that both
instructions were valid, even though they contained the terms
"moral certainty," "actual and substantial doubt," and "moral
evidence." Given the range of acceptable instructions as defined
by the Supreme Court, we believe that we would have to break new
ground to find that an instruction which charged the jury to be
"firmly convinced" before convicting Murray was constitutionally
infirm. Therefore, we hold that this claim is barred by Teague.
Next, Murray challenges the
aggravating-circumstance instruction used in the penalty phase
of his trial as unconstitutionally vague and overbroad. Although
Murray did not raise this claim in his direct appeal, the
Missouri Supreme Court addressed this issue in its independent
review of the sentencing instructions, and found that the
instruction, as applied in this case, passed muster. State v.
Murray, supra, 744 S.W.2d at 775-76.
The evidence submitted at
trial described two gruesome murders. Two victims were bound,
gagged, and held hostage for three hours before being shot
execution-style. Murray and his cohorts stabbed the floor around
the victims and sexually assaulted the two victims who managed
On the basis of this evidence,
we believe the jury could have found that the victims were
subject to serious physical and mental abuse, and that Murray's
actions exhibited the disregard for human life found by the
Missouri Supreme Court. Ibid. Moreover, this Court has
previously found similar instructions to be valid. See Battle v.
Delo, 19 F.3d 1547, 1562-63; Mercer v. Armontrout, 864 F.2d
1429, 1435 (8th Cir.1988).
After carefully reviewing each
of Murray's claims for federal habeas relief, we affirm the
District Court's denial of his petition.