State of Missouri vs. Elroy
S.W.2d 1 (Mo.banc 1984)
Elroy Preston had been living temporarily with his brother Ervin in the
downstairs portion of his house.
Ervin was a paraplegic
confined to a wheelchair. Pee Wee Richardson and Betty Klien lived
together upstairs. All were present in Ervin’s quarters for an evening
of heavy drinking.
During the course of
the night, frequent alcohol-related verbal disputes were exchanged
between the three men over petty issues, including who was to sleep
where and whether some chicken which had been purchased was to be shared
with Pee Wee Richardson.
Pee Wee and Betty
eventually went upstairs to bed, with Elroy Preston from time to time
interrupting their slumber with trips to their room. Angry for a
continuing assortment of reasons, Preston made a final trip upstairs and
ordered Pee Wee and Betty to come back downstairs.
In the presence of
Ervin and Sherry Brown (Preston’s girlfriend), Preston announced to Pee
Wee and Betty that he would kill them just as soon as he removed his
clothes. The idea behind the clothes removal was to keep splattered
blood off of them.
True to his word,
Preston removed his clothes and proceeded to stab and critically wound
Pee Wee with a hunting knife. Then with a single swipe of the knife he
severed Betty’s spinal cord at the neck, killing her instantly.
He immediately returned
his attention to Pee Wee and stabbed him several more times in the chest
and abdomen. Pee Wee died as a result of five stab wounds to the body,
face and hands, the latter coming as he tried to ward off the lethal
blows. He also absorbed four incised wounds.
The killings complete,
Preston took some left over fried chicken and dipped it in the victims’
blood and ate it with relish, all the while aiming deprecatory remarks
at his stone dead victims.
With this bizarre bit
of action completed, Preston and Sherry Brown dragged the bodies to a
back alley and left them there to be discovered by the neighbors. He and
Ms. Brown then made some effort to clean the blood spattered house.
Elroy Preston was
convicted of the capital murder of Pee Wee Richardson and sentenced to
death. He was also convicted of second degree murder for the killing of
Betty Klein and given a consecutive life sentence.
100 F.3d 596
Paul K. Delo, Warden, Appellee
United States Court of Appeals, Eighth Circuit
Submitted: September 10, 1996
Decided: November 14, 1996
Rehearing and Suggestion for Rehearing En Banc Denied January 29, 1997*
Appeal from the United States District Court for the Eastern
District of Missouri.
Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and
HANSEN, Circuit Judge.
WOLLMAN, Circuit Judge.
Preston, a Missouri
inmate sentenced to death, appeals from the district court's1
denial of his 28 U.S.C. Section(s) 2254 petition. We affirm.
After a day of drinking
and arguing at the home of Ervin Preston on
September 20, 1980, Willie "Pee Wee" Richardson and Betty Klein went
upstairs to bed, while Ervin, his brother Elroy
Preston, and Elroy's
girlfriend, Sherry Brown, remained downstairs.
In the early morning
hours of September 21, Elroy
Preston went upstairs and ordered Richardson and Klein to go back
downstairs. When they were downstairs, Preston
announced that he would kill Richardson and Klein after he removed his
Preston undressed, he stabbed Richardson several times, killed
Klein with a single stab wound to the neck (severing her spinal cord),
then returned to the still-living Richardson and stabbed him several
more times. When his victims were dead, Preston
took some fried chicken, dipped it in their blood, and ate it while
taunting the victims. Preston then dragged the
bodies into an alley and attempted to clean up the house.
Preston was convicted of the capital murder of Richardson and the
second-degree murder of Klein. His convictions were affirmed on direct
appeal, see State v. Preston, 673 S.W.2d 1 (Mo.),
cert. denied, 469 U.S. 893 (1984), and the denial of his motion for
post-conviction relief was also affirmed on appeal. See
Preston v. State, 736 S.W.2d 53 (Mo. Ct. App.
1987), cert. denied, 484 U.S. 1020 (1988). The
Missouri Supreme Court subsequently denied
Preston's petition for a writ of habeas corpus and his motion to
recall the mandate. State ex rel. Preston v.
Delo, No. 75519 (Mo. 1993) (unpublished) (habeas petition); State v.
Preston, No. 64186 (Mo. 1993) (unpublished) (motion
to recall the mandate).2
Preston alleged more than 250 grounds for
relief in his section 2254 petition filed in the district court. The
district court concluded that the vast majority of
Preston's claims were procedurally barred and rejected his
remaining claims on their merits.
Preston's primary argument on appeal is
that the district court erroneously ruled that his Brady3
claim was procedurally barred.4
Preston contends that the prosecutor prevented
him from reviewing and presenting Ervin Preston's
medical records at trial. These records show that Ervin was treated in
1974 for severe alcoholism and suggest that he suffered from auditory
hallucinations, blackouts, and memory problems.
The records were in court on the day of trial, subpoenaed by
Preston, but the trial court ruled they were
inadmissible because of remoteness in time and denied
Preston access to the records. Preston
argues that these records could have impeached Ervin's ability to
clearly discern and to recall, after a day of drinking, whether
Preston was sober and knew what he was doing at
the time of the murders, as Ervin so testified.
Preston places great emphasis on Ervin's perceptive ability
because Preston's lack of mental capacity to
commit capital murder was the defense at trial. During the direct appeal
and state post-conviction proceedings, none of Preston's
attorneys ever obtained and reviewed these records.
Preston's counsel in this habeas action was the first to do so.
Preston first presented his Brady claim to the
Missouri Supreme Court in a Missouri
Supreme Court Rule 91 habeas petition in December 1992. On January 25,
1993, the court summarily denied Preston's
petition, stating only: "Now at this day, on consideration of a petition
for writ of habeas corpus to the said respondent, it is ordered by the
court [h]ere that the said petition be, and the same is hereby denied."
Based on this order, the district court ruled that
Preston procedurally defaulted his Brady claim in the state
Preston argues that his claim is not procedurally barred because
the Missouri Supreme Court reviewed the merits
of his Brady claim. He cites two reasons: First, because roughly four
weeks elapsed between the time he filed his Rule 91 petition and its
denial, and second, because his claim of newly discovered evidence was a
proper basis for a state habeas claim. See State ex rel. Simmons v.
White, 866 S.W.2d 443, 446 (Mo. 1993) (en banc) (Rule 91 petition "may
be used to challenge a final judgment after an individual's failure to
pursue appellate and post-conviction remedies only to raise
jurisdictional issues or in circumstances so rare and exceptional that a
manifest injustice results."); Wilson v. State, 813 S.W.2d 833, 834-35 (Mo.
1991) (en banc) (newly discovered evidence can be basis for Rule 91
Prior to the decision
in Simmons, we decided Byrd v. Delo, 942 F.2d 1226 (8th Cir. 1991), a
case involving the Missouri Supreme Court's
summary denial of a Rule 91 habeas petition with the same language as
used in this case. We stated, "[a]fter Coleman [v. Thompson, 501 U.S.
722 (1991)], there is simply no reason to construe an unexplained Rule
91 denial as opening up the merits of a previously defaulted federal
issue," because such a denial rests on the Missouri
procedural rule that Rule 91 cannot be used to raise claims that could
have been raised on direct appeal or in a timely motion for post-conviction
relief. Byrd, 942 F.2d at 1232. Both before and after Simmons, we have
consistently followed Byrd's rule regarding unexplained denials of Rule
91 petitions. See Reese v. Delo, 94 F.3d 1177, 1181 (8th Cir. 1996);
Charron v. Gammon, 69 F.3d 851, 857 (8th Cir. 1995), cert. denied, 116
S. Ct. 2533 (1996); Anderson v. White, 32 F.3d 320, 321 n.2 (8th Cir.
1994); Battle v. Delo, 19 F.3d 1547, 1561 (8th Cir. 1994) (subsequent
history omitted); Blair v. Armontrout, 976 F.2d 1130, 1136 (8th Cir.
1992), cert. denied, 508 U.S. 916 (1993).
Preston argues that these cases following Byrd are
distinguishable because none of them involved a claim of newly
discovered evidence suppressed by the prosecutor. We disagree. We see no
reason to deviate from the rule enunciated in Byrd, and we decline to
create a new body of case law making distinctions between the
Missouri Supreme Court's unexplained summary
denials of Rule 91 petitions in various cases.
In any event, to the
extent we can read meaning into the Missouri
Supreme Court's order, we find that the summary denial rested on
Missouri's procedural rules. While a claim of
newly discovered evidence is cognizable in a Rule 91 petition, the
Missouri Supreme Court has also stated that to
avoid a procedural default a habeas petitioner "would have to establish
that the grounds relied on were not `known to him' while proceeding" on
his normal post-conviction relief motion. White v. State, 779 S.W.2d
571, 572 (Mo. 1989) (en banc); see also State ex rel. Simmons, 866 S.W.2d
at 446-47; Reese, 94 F.3d at 1181; Sloan v. Delo, 54 F.3d 1371, 1382
(8th Cir. 1995), cert. denied, 116 S. Ct. 728 (1996).
Preston argues that Ervin's medical records are newly discovered.
He also argues that the prosecutor misled Preston's
counsel by misrepresenting the contents of the records as relating only
to Ervin's diabetes. To the contrary, the trial transcript shows that
Preston's attorney knew that the medical
records related to Ervin's alcoholism and possible psychiatric problems.
Simply put, the basis of Preston's Brady claim
was known to him from the day of his trial, and there is no evidence in
the record that it could not have been further investigated and raised
in his direct appeal or post-conviction relief motion.
Preston can lift the procedural bar to his Brady claim if he
shows cause and actual prejudice. Coleman v. Thompson, 501 U.S. 722, 750
(1991); Reese, 94 F.3d at 1182. Preston alleges
as grounds for cause state interference, the ineffective assistance of
trial and appellate counsel, and mental illness during the pendency of
his state court proceedings. Even if we were to assume in this case that
any of these grounds could serve as cause, Preston
has failed to demonstrate that he was actually prejudiced. "`To
demonstrate prejudice, a petitioner must show that the errors of which
he complains "worked to his actual and substantial disadvantage,
infecting his entire [trial] with error of constitutional dimensions."'"
Charron, 69 F.3d at 858 (quoting Jennings v. Purkett, 7 F.3d 779, 782
(8th Cir. 1993) (quoting United States v. Frady, 456 U.S. 152, 170
(1982))); see also Zinzer v. Iowa, 60 F.3d 1296, 1299 n.7 (8th Cir.
We have reviewed the medical records in question, and we conclude
that they would have had only marginal impeachment value. As the trial
court ruled, the records are remote in time and there is no evidence
that the problems for which Ervin was treated reoccurred between 1974
and the time of the killings in 1980. Furthermore,
Preston's trial counsel attempted to impeach Ervin by questioning
him about his alcoholism, his drinking on the day of the murders, his
vague and internally inconsistent testimony, and the serious conflicts
between his testimony and that of Sherry Brown. Moreover, the State did
not rely solely on Ervin's statements that Preston
was sober and knew what he was doing to prove Preston's
mental capacity to commit capital murder.5
Therefore, we conclude that Preston has not
demonstrated he was actually prejudiced by his inability to use Ervin's
medical records at trial or counsel's failure to raise the issue on
Finally, the district
court did not abuse its discretion in declining to hold an evidentiary
hearing on either the procedural bar issue or on the merits of
Preston's claim. See Keeney v. Tamayo-Reyes,
504 U.S. 1, 11-12 (1992); Sidebottom v. Delo, 46 F.3d 744, 750 (8th
Cir.), cert. denied, 116 S. Ct. 144 (1995).
Preston alleges five instances of prosecutorial misconduct
violating his right to due process, which stemmed from the prosecutor's
closing arguments at the guilt and penalty phases of the trial. Four of
the five claims were defaulted in state court because they were not
presented on direct appeal or developed in collateral proceedings. Nave
v. Delo, 62 F.3d 1024, 1030 (8th Cir. 1995), cert. denied, 116 S. Ct.
1837 (1996). Preston argues that the
Missouri Supreme Court reviewed the merits of
these claims in considering his 1992 Rule 91 habeas petition. We reject
his argument on this point for the same reasons we rejected his argument
regarding his Brady claim. See section II, supra.
Preston has not shown cause for his default, much less actual
prejudice, and these four claims are procedurally barred.
The only claim preserved for our review6
stems from the prosecutor's penalty-phase closing argument, in which he
stated: You know, recently, in New York, Norman [Mailer's] protege,
after being paroled for murder . . . murdering another individual . . .
and the -- the photograph of the victim in that particular case, though
not particularly eloquent, after the defendant was again sentenced, said,
you know, this was in New York, he said, people of New York, people of
New York, what do you do at the end of the day with the garbage that you
have accumulated? . . . You throw it out. You don't take it home and put
it in your refrigerator.
Preston argues that the reference to a paroled murderer who
killed again, combined with the statements in his procedurally defaulted
claims, "so frightened and inflamed the jury that a reasoned and
responsible determination of the sentence to be imposed was impossible."
We will consider only
the specific statement quoted above, and not the defaulted statements,
because the prosecutor's statement stood on its own. This distinguishes
this case from Miller v. Lockhart, 65 F.3d 676 (8th Cir. 1995), in which
we considered the prosecutor's entire penalty-phase closing argument
because that prosecutor's argument created an "interwoven theme"
culminating with the comment leading to the defendant's objection
raising the entire, "interconnected," line of argument. Id. at 683. Here,
Preston objected to the prosecutor's statement
in isolation and not in relation to any related line of argument.
Whether an improper
closing argument at the penalty phase of a trial rises to the level of a
due process violation is determined by
(1) measur[ing] the
type of prejudice that arose from the argument; (2) examin[ing] what
defense counsel did in [counsel's] argument to minimize the prejudice;
(3) review[ing] jury instructions to see if the jury was properly
instructed; and (4) determin[ing] if there is a reasonable probability
that the outcome of the sentencing phase would have been different,
taking into account all of the aggravating and mitigating circumstances.
Antwine v. Delo, 54
F.3d 1357, 1363 (8th Cir. 1995), cert. denied, 116 S. Ct. 753 (1996);
Miller, 65 F.3d at 683. We examine the totality of the circumstances in
determining whether there is a reasonable probability that the error
complained of affected the outcome of the sentencing phase. Newlon v.
Armontrout, 885 F.2d 1328, 1338 (8th Cir. 1989), cert. denied, 497 U.S.
We conclude that this
case does not present a close question, and thus we will not go through
each element of the Antwine test. Rather, turning to the ultimate
question, we conclude that there is no reasonable probability that this
statement more than minimally affected the outcome of the sentencing
phase and that the comment did not "`so infect the [sentencing phase]
with unfairness as to make the resulting [sentence] a denial of due
process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (alterations
added) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974));
Six v. Delo, 94 F.3d 469, 477 (8th Cir. 1996).
Preston objected only to the reference to Norman Mailer's
protege. That reference does not equate with the comparison between the
defendant and notorious mass murderers that was a part of the improper
argument in Newlon, 885 F.2d at 1342, but rather was merely a lead-in
for the prosecutor's argument regarding the quote about throwing away
garbage. The prosecutor's garbage comment was mean-spirited and
unnecessary; he should have confined himself to arguing the facts of the
case and the aggravating circumstances justifying the death penalty,
rather than employing a dehumanizing comparison of
Preston to a useless, discardable object. Although we strongly
disapprove of the prosecutor's comments, we conclude that the challenged
reference to Norman Mailer's protege did not make
Preston's sentencing phase fundamentally unfair or its result
Preston contends that trial counsel was ineffective in several
respects, each of which was rejected by the district court. An
ineffective assistance claim presents a mixed question of law and fact;
we review the district court's factual findings for clear error, and its
legal conclusions de novo. Sidebottom, 46 F.3d at 752. To prevail,
Preston must establish that counsel's
performance was deficient and that he was prejudiced by that deficient
performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). We
conclude that Preston's attorneys did not
perform deficiently regarding any of Preston's
claims, and accordingly we do not reach the prejudice issue.
Preston argues that his attorneys were ineffective for failing to
present to examining psychiatrists and the jury information that he may
have been under the influence of phencyclidine hydrochloride (PCP) on
the day of the murders. The Missouri courts
rejected this claim, finding that the evidence supported the conclusion
that Preston did not tell counsel of his drug
use, that counsel could not have independently discovered such drug use,
and that Preston denied drug use to the
psychiatrists. Preston, 736 S.W.2d at 55.
Like the district court,
we defer to the state court's factual findings, as they find support in
the record made at the post-conviction relief hearing. See 28 U.S.C.
Section(s) 2254(d) (1994). The record reveals that Sherry Brown did not
disclose possible marijuana and PCP use to Preston's
counsel until the week before the post-conviction relief hearing.
Preston himself was unsure of whether he had
actually used PCP the day of the murders, and he twice testified that he
had not told either the psychiatrists or his own lawyers that he had
used PCP the day of the murders. Both psychiatrists retained by
Preston denied knowledge of his drug use, and
they stated that Preston affirmatively denied
using drugs. In light of the finding that counsel did not possess
information regarding Preston's drug use and
could not have learned of this information, counsel did not perform
deficiently regarding the PCP issue.
Preston argues that counsel failed to inform him of his right to
testify and that counsel prevented him from testifying at the second
phase of his trial. Based on the testimony developed at the post-conviction
relief hearing, the Missouri Court of Appeals
and the district court rejected these claims. We do likewise. The
hearing transcript shows that both of Preston's
attorneys discussed his right to testify with him.
Preston admitted that he knew he had a right to testify at the
penalty phase of the trial and could have told the judge that he wanted
to do so. Preston clearly knew of his right to
testify, and there is nothing in the record to indicate that counsel
prevented him from doing so.
Preston argues that counsel was ineffective for
failing to present any evidence at the penalty phase of the trial.
Preston argues that counsel should have
presented his testimony, the testimony of family members, and that of
mental health experts. Although the decision not to present any evidence
at the sentencing phase of a capital trial is one not lightly to be
made, there is no per se rule that a failure to present such evidence
constitutes ineffective assistance. Laws v. Armontrout, 863 F.2d 1377,
1382, 1386 (8th Cir. 1988) (en banc), cert. denied, 490 U.S. 1040
(1989). Counsel's decision in this case was the product of reasonable
investigation and trial strategy and did not constitute deficient
performance. See id. at 1382-82 ("[T]he decision not to present evidence
at the penalty phase is well within the range of practical choices that
are not to be second-guessed, as long as they are based on informed and
Peter Stragand was the
attorney responsible for presenting Preston's
penalty-phase defense. He testified that he did not put
Preston on as a witness because he thought
Preston was "too quiet" and would be a bad
witness. Stragand testified that he did not think that the jury did not
like Preston or had a "bad feeling towards [Preston]
as a person." Stragand testified that he did not call Sherry Brown to
testify because she had already testified twice in the guilt phase of
the trial and he did not think she would be helpful at the penalty phase.
Viewing Stragand's decisions as of the time they were made, see
Strickland, 466 U.S. at 689-90, his decisions regarding whether to call
Preston or Brown were strategic choices based
on a reasonable evaluation that Preston and
Brown would not have been effective witnesses. Cf. Burger v. Kemp, 483
U.S. 776, 791-92 (1987) (counsel reasonably concluded that it was unwise
to put defendant on stand because defendant never expressed remorse and
might have bragged about crime, causing jury to view him as indifferent
Preston's family members were contacted before trial. Although
Stragand did not explain at the post-conviction hearing why he did not
call them to testify, counsel was aware that Preston
had had a history of violence towards his family members.
Preston had been abusive towards his wife, had
damaged his mother's home, and had kicked the windows out of his
father's car. His mother had kicked him out of her house shortly before
the murders out of fear that Preston would harm
investigation was not inadequate, and he could reasonably have concluded
that Preston's family members would not have
been effective witnesses and might have introduced harmful facts. See
Burger, 483 U.S. at 792 (counsel reasonably decided not to call
defendant's mother to testify because proposed testimony would not have
helped and would have introduced damaging historical facts); Schneider
v. Delo, 85 F.3d 335, 341 (8th Cir. 1996), petition for cert. filed,
(Oct. 18, 1996) (No. 96-6372) (counsel's decision not to call family
members was reasonable because they were "weak and offered little" and
because counsel determined they were too upset by guilty verdict to be
effective witnesses); Laws, 863 F.2d at 1390-91 (family members refused
to testify on Laws's behalf, and testimony would have revealed the
relatives' total lack oF.Supp.ort for Laws). Furthermore, the record
does not reveal what Preston's family members
would have testified to, so we have no basis upon which to find that
Stragand's judgment on this point was erroneous. Cf. Burger, 483 U.S. at
792-93 (where nothing was in record regarding potentially mitigating
nature of proposed witness's testimony, the state of the record "d[id]
not permit" the court to reach the conclusion that counsel's judgment
Preston's attorneys testified that they had
planned to call two mental health experts who had examined
Preston to testify during the penalty phase of
the trial. One of Preston's doctors diagnosed
Preston as suffering from alcohol amnestic
disorder, which, while not preventing Preston
from knowing right from wrong, would impair his ability to willfully and
deliberately take some actions. Preston's
doctors agreed there was also some evidence that
Preston had some mental abnormality or impairment related to his
Regardless of whether
the doctors' testimony was of some potential value, Stragand made an
informed decision, after deliberation and consultation with co-counsel,
not to present their testimony. The State also had two doctors who had
examined Preston, both of whom concluded that
Preston had no mental disease or defect, nor
any mental impairment at the time of the crime. Stragand testified that
essentially it would have been Preston's
doctors versus the State's doctors. Furthermore, Stragand knew that if
he called Preston's doctors to testify, they
would be subject to cross-examination regarding the bases of their
opinions. This cross-examination would have revealed
Preston's prior history of violence toward his family and Sherry
Brown; Preston's claims that he could not
remember the crime, that he was not there, that he did not know the
victims, and that his brother Ervin was framing him;
Preston's prior violent criminal history (although some of this
came in through the State's evidence); Preston's
past violence towards persons and property; and
Preston's history of alcohol-related blackouts and outbursts of
Counsel can reasonably
decide not to present potentially helpful mitigating evidence-including
the testimony of mental experts-if such evidence would result in the
introduction of damaging evidence. See Burger, 483 U.S. at 792; Darden
v. Wainwright, 477 U.S. 168, 186 (1986); Strickland, 466 U.S. at 699;
Six, 94 F.3d at 474; Whitmore v. Lockhart, 8 F.3d 614, 617 (8th Cir.
1993); Laws, 863 F.2d at 1389-90. Stragand's decision not to present
Preston's doctors' testimony in this case was
reasonable because of the damaging evidence that would have been brought
out on cross-examination.
Many of Stragand's
strategic decisions regarding his handling of the penalty phase were
influenced by his theory about the jury's mindset. He and his co-counsel
both testified they thought that the jury had decided not to sentence
Preston to death. In addition to Stragand's
belief that the jury did not have a "bad feeling" towards
Preston, Stragand testified that he believed
the verdicts indicated that the jury, which knew from voir dire that
this was a death penalty case, had reached a compromise. Stragand's
theory was that because the murders were committed contemporaneously
they were of equal culpability.
Thus, when the jury
returned a verdict of capital murder on only one count and of second-degree
murder on the other, it had reached a compromise and would not vote to
sentence Preston to death. While Stragand's "feel"
for the jury may have been wrong, it was the contemporaneous product of
having investigated, prepared, and tried the case. It is wrong only in
hindsight and is not the basis for a finding of deficient performance.
See Laws, 863 U.S. at 1393 ("In examining counsel's performance, we do
not use 20-20 hindsight."); cf. Strickland, 466 U.S. at 673, 699 (counsel's
unsuccessful strategy for sentencing-phase argument relied in part on
judge's reputation for placing importance on a defendant owning up to
The judgment is
affirmed. We thank counsel for her zealous efforts on
The Honorable Donald F. Stohr, United States District
Judge for the Eastern District of Missouri
Preston filed a second Rule
91 habeas petition in 1995. The Missouri
Supreme Court denied this petition, stating that all claims presented in
it were procedurally defaulted. State ex rel. Preston
v. Delo, No. 77812 (Mo. 1995) (unpublished). The 1995 petition and the
court's order are part of the record in this appeal, but
Preston makes no arguments regarding his 1995
petition. Hence, our opinion will refer only to his 1992 petition
See Brady v. Maryland, 373 U.S. 83 (1963); United
States v. Bagley, 473 U.S. 667 (1985)
The State argues that this appeal is governed by the
provisions of the Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 104, 110 Stat. 1214, 1218-19 (April 24, 1996),
which amended section 2254. It urges us to follow the Seventh Circuit's
decision in Lindh v. Murphy, 96 F.3d 856, 865-67 (7th Cir. 1996) (en
banc), cert. granted in part, ___ U.S. ___, 117 S.Ct. 726, ___ L.Ed.2d
___ (1997) (Act's amendments codified at section 2254(d) apply to
pending cases). We have not yet taken a position on whether the
amendments to section 2254 apply to cases that were pending on April 24,
1996. See Oliver v. Wood, 96 F.3d 1106, 1108 n.2 (8th Cir. 1996);
Rehbein v. Clarke, 94 F.3d 478, 481 n.4 (8th Cir. 1996). Because most of
Preston's claims are either procedurally barred
or fail under the more lenient provisions of the old law, we leave the
decision of the issue presented by the State to a more appropriate case
The State relied heavily on the facts of the crime:
After arguing with his brother about a matter related to the two victims,
Preston went upstairs, got the victims out of
bed, brought them downstairs, cut the wire to the telephone, and briefly
argued with them. He told them he would kill them as soon as he
undressed, and then undressed and killed them, twice stabbing Richard
multiple times. Preston then disposed of the
bodies, cleaned up the blood in the house, and disposed of blood-soaked
evidence. He drove his girlfriend home, then returned and tried to sleep
until police officers arrived and he let them into the house. The State
also relied on the lack of evidence that Preston
suffered from a mental disease or defect; the existence of motive, based
on Preston's arguments with the victims earlier
that day; and the testimony of two police officers who observed
Preston at the house after the murders, one of
whom spoke with Preston
We conclude that this claim was preserved, despite
the district court's unexplained ruling that the claim was procedurally
barred. The State's brief argues the merits of this claim. See
Sidebottom, 46 F.3d at 756-57 (rejecting claim on its merits despite
district court's erroneous finding that claim procedurally defaulted)