Appeal from the United States District Court for
the Western District of Missouri.
Susan M. Hunt, Kansas City, MO, argued (Elena M.
Franco, on the brief), for appellant.
Frank A. Jung, Asst. Atty. Gen., Jefferson City,
MO, argued for appellee.
Before: FAGG, HENLEY, and BOWMAN, Circuit Judges.
FAGG, Circuit Judge.
Richard S. Zeitvogel is on death row in Missouri
for murdering Gary Wayne Dew in 1984. Zeitvogel appeals the district
court's denial of his petition for a writ of habeas corpus under 28
U.S.C. 2254 (1988), and we affirm.
Zeitvogel killed Dew while they were cellmates in
the maximum security area of the Missouri State Penitentiary. A
prison guard responding to a flashing emergency light over their
cell found Dew dead on a mattress on the floor, and Zeitvogel alone
with the body in the locked cell. Zeitvogel told the guard, "I
killed my cellie." During Zeitvogel's trial for murdering Dew, the
State of Missouri presented evidence that Zeitvogel strangled Dew
from behind with a plastic-covered wire, then waited about three
hours before activating the emergency light to summon help.
Zeitvogel admitted killing Dew, but attempted to show he choked Dew
with a sheet in self-defense after Dew attacked him. The jury
rejected Zeitvogel's self-defense theory and convicted Zeitvogel of
At the penalty phase of the trial, the State
introduced certified copies of Zeitvogel's earlier convictions for
capital murder, rape, armed robbery, assault, and jail break and
escape. State witnesses explained Zeitvogel had received the earlier
murder and assault convictions for fatally stabbing a fellow inmate
and threatening a prison guard. Zeitvogel presented no mitigating
evidence at the penalty phase. His attorney made a plea for mercy
and argued Dew had provoked Zeitvogel by assaulting him. After
finding the presence of three aggravating circumstances, the jury
returned a verdict recommending the death penalty. The district
court denied Zeitvogel's posttrial motions and sentenced Zeitvogel
Zeitvogel unsuccessfully challenged his
conviction and sentence on direct appeal, see State v. Zeitvogel,
707 S.W.2d 365 (Mo.) (en banc), cert. denied,
479 U.S. 871 , 107 S.Ct. 243, 93 L.Ed.2d 168 (1986),
and in Missouri postconviction proceedings, see Zeitvogel v. State,
760 S.W.2d 466 (Mo.Ct.App.1988), cert. denied,
490 U.S. 1075 , 109 S.Ct. 2089, 104 L.Ed.2d 652 (1989).
Zeitvogel then filed this habeas petition in the district court,
raising thirty-two grounds for relief. While Zeitvogel's federal
habeas petition was pending, Zeitvogel filed a motion for state
habeas relief and the Missouri Supreme Court denied the motion. See
Zeitvogel v. Delo, No. 73714 (Mo. Apr. 30, 1991). Back in the
federal district court, Zeitvogel moved for an evidentiary hearing
and for the appointment of experts to help him present his claims.
Concluding as a matter of law that all Zeitvogel's claims were
either procedurally barred or meritless, the district court denied
Zeitvogel's petition without holding a hearing or appointing experts.
After the district court later refused to alter or amend the
judgment, Zeitvogel brought this appeal.
Zeitvogel mainly contends the State's failure to
disclose certain hospital and prison records containing evidence of
Zeitvogel's low intelligence, learning disabilities, and epilepsy
caused by organic brain damage (collectively "mental deficiencies")
violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963), and his trial counsel was ineffective in not obtaining
and presenting evidence of these mental deficiencies during the
guilt and penalty phases of his trial. Zeitvogel now wants a federal
hearing to present the evidence and expert testimony about its legal
Zeitvogel failed to present and preserve these
contentions in state court. Zeitvogel failed to raise his Brady
claim and his guilt-phase ineffective assistance claim in state
court proceedings as Missouri law requires. See LaRette v. Delo, 44
F.3d 681, 687 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct.
246, 133 L.Ed.2d 172 (1995). Although Zeitvogel raised his penalty-phase
ineffective assistance claim and presented some supporting evidence
in the state postconviction hearing, Zeitvogel failed to present the
additional supporting evidence that he now wants us to consider. See
Keeney v. Tamayo-Reyes, 504 U.S. 1, 8-12, 112 S.Ct. 1715, 1719-21,
118 L.Ed.2d 318 (1992) (petitioner must fully develop the supporting
facts during the state court hearing); Battle v. Delo, 64 F.3d 347,
354 (8th Cir.1995) (same), cert. denied, --- U.S. ----, 116 S.Ct.
1881, 135 L.Ed.2d 176 (1996). Because Zeitvogel failed to present
his claims and additional supporting evidence in state court, we may
not consider them in this federal habeas proceeding unless Zeitvogel
shows both cause for his failure and resulting prejudice, or that a
fundamental miscarriage of justice would otherwise result because he
is actually innocent of capital murder or the death penalty. Coleman
v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2564-65, 115 L.Ed.2d
640 (1991); Keeney, 504 U.S. at 11, 112 S.Ct. at 1721; Joubert v.
Hopkins, 75 F.3d 1232, 1244 (8th Cir.1996); Nave v. Delo, 62 F.3d
1024, 1032 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct.
1837, 134 L.Ed.2d 940 (1996).
We need not address the miscarriage of justice
exception in this case because Zeitvogel did not assert actual
innocence in his habeas petition, see Charron v. Gammon, 69 F.3d
851, 857 n. 6 (8th Cir.1995), and did not develop an actual
innocence argument in his appellate brief, see Schleeper v. Groose,
36 F.3d 735, 737 (8th Cir.1994). Instead, Zeitvogel relies on the
cause and prejudice exception to excuse his procedural default. The
district court held this exception does not apply because Zeitvogel
cannot show prejudice. In our view, Zeitvogel cannot show cause for
his state court default; thus, we need not decide whether Zeitvogel
suffered actual prejudice. Oxford v. Delo, 59 F.3d 741, 748 (8th
Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1361, 134 L.Ed.2d
528 (1996); see also Auman v. United States, 67 F.3d 157, 161-62
(8th Cir.1995) (Court of Appeals can affirm on any ground supported
To establish cause, Zeitvogel must show something
beyond the control of postconviction counsel, like State
interference, actually prevented postconviction counsel from raising
the claims and presenting the evidence in state court. Coleman, 501
U.S. at 753, 111 S.Ct. at 2566-67. Zeitvogel argues the State's
failure to produce the hospital and prison records requested by
Zeitvogel's trial attorney prevented his postconviction attorney
from obtaining a sufficient factual basis to raise the defaulted
Brady and guilt-phase ineffective assistance claims, and from
presenting the additional evidence supporting the penalty-phase
ineffective assistance claim. The unproduced records are Fulton
State Hospital psychiatric reports about Zeitvogel from 1975,
Missouri State Penitentiary Hospital records discussing Zeitvogel's
1984 hospital stay, and a 1983 Missouri Department of Corrections
re-classification analysis. Zeitvogel suggests postconviction
counsel could not know the State failed to produce these documents
because the documents were not uncovered until after the
postconviction proceedings were finished, and postconviction counsel
needed the documents to learn of Zeitvogel's mental deficiencies and
to show that trial counsel should have presented evidence at the
guilt and penalty phases based on the deficiencies.
The State's failure to produce the records does
not excuse Zeitvogel's procedural default. Lack of production by
state officials is not cause excusing procedural default if the
information the officials failed to produce is reasonably available
through other means. Barnes v. Thompson, 58 F.3d 971, 975 (4th
Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 435, 133 L.Ed.2d 350
(1995). When a petitioner can obtain the information contained in
unproduced documents through a reasonable and diligent investigation,
the State's failure to produce documents is not cause. Id.; see
McCleskey v. Zant, 499 U.S. 467, 497-98, 111 S.Ct. 1454, 1471-73,
113 L.Ed.2d 517 (1991). Here, postconviction counsel knew the
records existed and the information contained in them was either
known or reasonably available through means other than State
Postconviction counsel knew the State had
hospital and prison records about Zeitvogel. A psychiatrist who
examined Zeitvogel before the postconviction hearing, Dr. A.E.
Daniel, told postconviction counsel that Fulton State Hospital and
the Missouri State Penitentiary Hospital had medical records about
Zeitvogel from the 1970s and 1980s, and counsel acknowledges in his
affidavit that he believed the state hospitals had all Zeitvogel's
psychiatric records. The re-classification analysis is just a
standard prison record from Zeitvogel's prison file, and it is
common knowledge that prisons routinely keep records about inmates.
Shaw v. Delo, 971 F.2d 181, 184 (8th Cir.1992), cert. denied,
507 U.S. 927 , 113 S.Ct. 1301, 122 L.Ed.2d 690 (1993).
Postconviction counsel also knew much of the information about
Zeitvogel's mental deficiencies and general history contained in the
unproduced records because Zeitvogel's mother told postconviction
counsel about Zeitvogel's epilepsy, brain damage, and learning
disabilities before the postconviction hearing. See Barnes, 58 F.3d
Postconviction counsel could have obtained the
state hospital and prison records if he had acted reasonably and
diligently, but he made no effort to obtain them. Rather than
requesting the records from the hospitals or Zeitvogel's prison
file, postconviction counsel sent the Missouri Department of
Corrections a vague letter asking for "the psychiatric report from [Zeitvogel's]
evaluation at the Missouri State Penitentiary." In response to
counsel's letter, the State sent counsel one document, an updated
psychiatric evaluation of Zeitvogel, conducted to give a current
assessment of Zeitvogel's condition. Postconviction counsel should
have immediately realized the updated evaluation was not one of the
state hospital records Dr. Daniel had mentioned, because it was
dated after counsel's letter requesting Zeitvogel's records. Further,
the updated evaluation confirmed counsel's belief that the State had
other relevant records, because the evaluation referred to reports
from earlier examinations of Zeitvogel. The State did not tell
counsel it had no other records on Zeitvogel, but sent the current
evaluation with a cover letter stating, "We hope this information
will suffice." Postconviction counsel took no steps to obtain more
records. Zeitvogel's appointed habeas counsel made the effort and
obtained them "pretty easily" by filing a simple application for an
order authorizing counsel's access to the records.
If postconviction counsel had acted reasonably
and diligently, he could have raised the Brady and guilt-phase
ineffective assistance claims, developed and presented the evidence
contained in the unproduced records and expert testimony based on
them, and called family members and others acquainted with Zeitvogel
in the state postconviction hearing. In anticipation of the hearing,
postconviction counsel had Zeitvogel examined by Dr. Daniel.
Although Dr. Daniel decided Zeitvogel did not have any mental
impairment affecting his criminal behavior, Dr. Daniel's opinion
letter also stated Zeitvogel's history suggested epilepsy and if
counsel could confirm Zeitvogel was epileptic, a neurological
examination might be helpful. Postconviction counsel knew from
Zeitvogel's mother that Zeitvogel had epilepsy, but did not consult
a neurologist. Postconviction counsel could have obtained the
unproduced records mentioned by Dr. Daniel several months before the
postconviction hearing and asked the doctor to re-evaluate Zeitvogel,
or could have developed other expert testimony about the
significance of the evidence in the records. Instead, postconviction
counsel told the court Dr. Daniel's opinion was not helpful because
the doctor said Zeitvogel's epilepsy had no effect on Zeitvogel's
criminal conduct. Rather than presenting expert testimony about
Zeitvogel's mental health, the postconviction attorney agreed with
the State prosecutor's assessment that Zeitvogel had no psychiatric
defects at the time of trial.
In our view, the blame for Zeitvogel's procedural
default falls squarely on Zeitvogel's postconviction counsel rather
than the State. At the time of the postconviction hearing,
postconviction counsel either had or reasonably could have had a
sufficient factual basis to assert the defaulted Brady and guilt-phase
ineffective assistance claims, and could have presented the
additional evidence supporting the penalty-phase ineffective
assistance claim. See McCleskey, 499 U.S. at 498, 111 S.Ct. at
1472-73; Barnes, 58 F.3d at 975. Postconviction counsel knew about
the records the State failed to produce, knew much of information
they contained, and could have obtained the records if had he acted
reasonably and diligently. Had counsel obtained the records, he
could have developed any necessary expert testimony at the
postconviction hearing. Indeed, in their habeas pleadings,
Zeitvogel's habeas counsel recognize postconviction counsel knew of
Zeitvogel's mental deficiencies but failed to investigate and
present them at the postconviction hearing. It is well-established
that the ineffectiveness of state postconviction counsel cannot
excuse procedural default. Sidebottom v. Delo, 46 F.3d 744, 751 (8th
Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 144, 133 L.Ed.2d 90
(1995). Postconviction counsel himself admits that after he
interviewed Zeitvogel and Zeitvogel's mother, he realized "a
reasonably competent [trial] defense ... would [have] involve[d]
investigation of [Zeitvogel's epilepsy and related deficiencies]."
Nevertheless, postconviction counsel did not raise or fully develop
the supporting facts for the now-defaulted ineffective assistance
claims based on trial counsel's failures during the guilt and
penalty phases. We thus conclude the State's failure to produce the
hospital and prison records is not cause for Zeitvogel's procedural
Besides the State's failure to produce records,
Zeitvogel contends the State's issuance of execution warrants during
his postconviction proceedings is cause for his default.
Postconviction counsel obtained several stays of execution for
Zeitvogel. Each time the Missouri Supreme Court granted a stay, the
court postponed Zeitvogel's execution for about thirty days and
issued a new warrant for his execution, as the court commonly does
in death penalty cases. Issuance of the warrants furthered the
court's legitimate interest in ensuring Zeitvogel's postconviction
proceeding was moving forward and was not being used solely as a
delay tactic. Nevertheless, Zeitvogel contends the warrants
interfered with his ability to investigate and present claims at the
postconviction hearing, because postconviction counsel was forced to
spend a great deal of his time on obtaining stays. Zeitvogel has
failed to show the warrants prevented him from raising and
presenting any claim in the postconviction proceedings, however.
LaRette, 44 F.3d at 687.
The record does not support Zeitvogel's assertion
that his postconviction counsel was too busy handling execution
warrants to discover and raise the defaulted claims or develop the
additional evidence. It is relatively easy to move for a stay in
Missouri. Zeitvogel's postconviction counsel merely had to obtain a
certificate from the postconviction court stating additional time
was needed to prepare the case, and then present the certificate to
the Missouri Supreme Court, which routinely granted Zeitvogel's
motions for stays. In his brief, Zeitvogel describes two occasions
when his counsel had difficulty tracking down a judge to sign the
necessary certificate, but the record shows counsel brought the
close calls on himself by dashing to the courthouse at the last
minute. Postconviction counsel states in his affidavit, without
providing any specifics, that his heavy workload made moving for
stays especially burdensome. Even if postconviction counsel had
limited time to spend on Zeitvogel's case, Zeitvogel's mother, Dr.
Daniel, and the State gave postconviction counsel ample information
about potential claims and available evidence, but postconviction
counsel failed to follow through on the information handed to him on
a silver platter.
Zeitvogel's efforts to blame his procedural
default on the State fail as a matter of law. Thus, the district
court properly refused to conduct an evidentiary hearing on the
issue of cause, Oxford, 59 F.3d at 748, and on Zeitvogel's defaulted
Brady claim and his defaulted guilt-phase ineffective assistance
claim, Pollard v. Delo, 28 F.3d 887, 888-89 (8th Cir.), cert. denied,
--- U.S. ----, 115 S.Ct. 518, 130 L.Ed.2d 423 (1994). For the same
reason, Zeitvogel is not entitled to a federal hearing to supplement
the postconviction court's record on his penalty-phase ineffective
assistance claim. Battle, 64 F.3d at 354-55; Sidebottom, 46 F.3d at
750-51. Given that the district court properly refused to conduct an
evidentiary hearing, we reject Zeitvogel's contention that the
district court should have appointed experts and investigators to
help Zeitvogel present his claims.
Because Zeitvogel's contentions are aimed at
obtaining a federal hearing and supplementing the record from his
state postconviction hearing, we do not believe Zeitvogel has asked
us to review his penalty-phase ineffective assistance claim based
solely on the limited evidence Zeitvogel raised during the state
postconviction hearing. Instead, Zeitvogel argues we should consider
evidence outside the state postconviction record, and we have held
we cannot. Even if Zeitvogel had asked us to review his penalty-phase
ineffective assistance claim based only on the state postconviction
record, we would reject the claim because the state postconviction
record does not show Zeitvogel was prejudiced by trial counsel's
failure to inform the jury about Zeitvogel's mental deficiencies.
See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052,
2068, 80 L.Ed.2d 674 (1984). At the postconviction hearing,
Zeitvogel's mother testified about Zeitvogel's mental deficiencies.
Zeitvogel, 760 S.W.2d at 471. Contrary to Zeitvogel's contention,
the state court that conducted the postconviction hearing and the
Missouri Court of Appeals recognized that evidence about a
defendant's mental deficiencies may be mitigating. See id. In
Zeitvogel's case, however, "[t]he mitigating value of the evidence
... [was] speculative at best. Evidence presented at the [postconviction]
hearing indicated [Zeitvogel's] epilepsy could have no effect on his
criminal behavior. No evidence was presented at the hearing to
explain how his learning disabilities or brain damage could have
affected his criminal behavior. [Zeitvogel] failed to establish how
any of this evidence could have influenced the decision of the jury."
Id. Moreover, any mitigating force the evidence had was outweighed
by damaging testimony that Zeitvogel "exhibited rebellious and anti-social
behavior in his childhood." See id. In sum, considering only the
evidence in the postconviction record, we would deny the penalty-phase
ineffective assistance claim, and as we have already stated, any
deficiencies in the postconviction record rest with Zeitvogel's
postconviction counsel, ante at 280-81.
Having disposed of the main thrust of Zeitvogel's
appeal, we turn to his remaining contentions. At trial, Zeitvogel's
counsel presented the testimony of inmates Chester Bettis and
Charles Stevenson to support Zeitvogel's claim that he killed Dew in
self-defense. Bettis and Stevenson testified Dew and Zeitvogel were
fighting in their cell on the day of Dew's murder and Dew threatened
to kill Zeitvogel. Zeitvogel now argues his trial counsel was
ineffective for not calling several additional inmates to testify in
support of Zeitvogel's self-defense claim. Zeitvogel raised this
ineffective assistance claim during his state postconviction
proceedings, but postconviction counsel did not call the additional
inmates as witnesses.
To show counsel was ineffective, Zeitvogel must
show his attorney's actions prejudiced him, that is, a reasonable
probability that the jury would have reached a different verdict had
it heard the additional testimony. Foster v. Delo, 39 F.3d 873, 877
(8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1719, 131
L.Ed.2d 578 (1995). We have reviewed the trial attorney's testimony
at the postconviction hearing and agree with the postconviction
court that the additional inmates could have done little more than
rehash the testimony given by Bettis and Stevenson. See Zeitvogel,
760 S.W.2d at 468, 470. Zeitvogel argues the inmates who did not
testify could have strengthened his self-defense claim by testifying
Dew had a motive to attack Zeitvogel: Dew believed Zeitvogel had
informed prison authorities about Dew's attack on another inmate in
the prison chapel, and Dew wanted to get back at Zeitvogel for
snitching on him. We will not consider this factual argument,
however, because it was not presented to the state court. Flieger v.
Delo, 16 F.3d 878, 884-85 (8th Cir.), cert. denied, --- U.S. ----,
115 S.Ct. 355, 130 L.Ed.2d 309 (1994). During the postconviction
hearing, Zeitvogel's postconviction counsel did not present any
evidence about Dew's motive to attack Zeitvogel, the chapel incident,
or any testimony from the inmates about revenge. Indeed, the
prisoners' affidavits discussing Dew's motive are dated nearly seven
years after the state postconviction hearing. We conclude Zeitvogel
has not shown his trial counsel's failure to call the additional
witnesses prejudiced him. See Strickland, 466 U.S. at 694, 104 S.Ct.
at 2068; Foster, 39 F.3d at 877.
Zeitvogel next contends the trial court violated
due process by requiring Zeitvogel to remain shackled while in the
courtroom. Although Zeitvogel has complained of the shackling in
other ways, Zeitvogel did not raise this due process argument in the
state or district court, so we need not consider it. Jones v.
Caspari, 975 F.2d 460, 461 (8th Cir.), cert. denied,
506 U.S. 924 , 113 S.Ct. 345, 121 L.Ed.2d 261 (1992).
The argument is meritless, anyway. The trial court acted well within
its discretion in deciding restraints were necessary to prevent
Zeitvogel from escaping and to protect others in the courtroom. At
the time of trial, Zeitvogel had murder, rape, and assault
convictions and had escaped from state custody once before. See
Gilmore v. Armontrout, 861 F.2d 1061, 1071 (8th Cir.1988), cert.
490 U.S. 1114 , 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989).
Further, the trial court's decision to require restraints did not
prejudice Zeitvogel. Even without seeing the shackles, the jury
would have learned from the trial evidence that Zeitvogel was an
inmate. See Estelle v. Williams, 425 U.S. 501, 507, 96 S.Ct. 1691,
1694-95, 48 L.Ed.2d 126 (1976). After all, Zeitvogel killed Dew in
the maximum security area of the Missouri State Penitentiary.
Because the trial court's ruling requiring restraints was clearly
proper, we reject Zeitvogel's contention that trial counsel was
ineffective for not objecting to the ruling. This ineffective
assistance claim is procedurally barred as well because Zeitvogel
abandoned the claim during his state court appeal from the denial of
postconviction relief. Nave, 62 F.3d at 1030.
Zeitvogel next challenges the penalty-phase jury
instructions. Jury instruction eighteen stated Zeitvogel would not
be eligible for the death penalty unless the jury found the
existence of at least one of three aggravating circumstances,
including that Zeitvogel had a substantial history of serious
assaultive convictions, and that at the time of Dew's murder,
Zeitvogel had an earlier capital murder conviction. Zeitvogel
contends this instruction improperly listed these two separate
aggravating circumstances when only one was authorized by the
controlling Missouri statute, Mo.Rev.Stat. § 565.012.2 (Supp.1983).
See Zeitvogel, 707 S.W.2d at 368. During Zeitvogel's direct appeal,
however, the Missouri Supreme Court held all the aggravating
circumstances were properly given under Missouri law. Id. We defer
to the Missouri Supreme Court's interpretation of its state law.
Baker v. Leapley, 965 F.2d 657, 659 (8th Cir.1992).
Instructions eighteen and nineteen both mention
Zeitvogel's earlier murder conviction, and Zeitvogel argues this "duplication"
violates the Eighth Amendment. We disagree. Instruction eighteen
narrowed the class of capital murderers eligible for the death
penalty. See Zant v. Stephens, 462 U.S. 862, 878, 103 S.Ct. 2733,
2743, 77 L.Ed.2d 235 (1983). Instruction nineteen instructed the
jury to consider all the evidence in deciding whether Zeitvogel
should actually receive the death penalty. The jury was entitled to
consider Zeitvogel's criminal record in making its sentencing
determination. Id. at 888, 103 S.Ct. at 2748-49.
Because instructions eighteen and nineteen were
proper, Zeitvogel's trial counsel was not ineffective for failing to
object to them. Further, Zeitvogel never raised this ineffective
assistance issue in the Missouri courts. Habeas relief is not
warranted in any event because the alleged error did not infect the
entire trial and render it fundamentally unfair, nor was the alleged
error a fundamental defect resulting in a complete miscarriage of
justice. Baker, 965 F.2d at 659; Kennedy v. Delo, 959 F.2d 112, 118
(8th Cir.), cert. denied,
506 U.S. 857 , 113 S.Ct. 168, 121 L.Ed.2d 116 (1992).
Finally, Zeitvogel contends the Missouri Supreme
Court did not adequately review his sentence to ensure its
proportionality to sentences imposed on defendants in similar cases,
in violation of the Eighth and Fourteenth Amendments. The Missouri
Supreme Court reviewed Zeitvogel's sentence during his direct
appeal, however, and addressed and decided the proportionality issue
in its opinion. Zeitvogel, 707 S.W.2d at 370-71. Under our recent
decisions, this is the end of our inquiry. See LaRette, 44 F.3d at
688; Foster, 39 F.3d at 882; Murray v. Delo, 34 F.3d 1367, 1376-77
(8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2567, 132
L.Ed.2d 819 (1995).
In conclusion, Zeitvogel's contentions fail.
Because Zeitvogel cannot show cause for his procedural default,
Zeitvogel is not entitled to a federal evidentiary hearing on his
main claims. Zeitvogel's remaining contentions are procedurally
barred or meritless. We thus affirm the district court's denial of
Zeitvogel's habeas petition.
Before FAGG and BOWMAN, Circuit
Judges, and HENLEY, Senior Circuit Judge.
FAGG, Circuit Judge.
Richard Zeitvogel, a Missouri inmate sentenced to
death for killing his cellmate, Gary Dew, has applied to us for an
order authorizing the district court to consider a second habeas
petition. See Antiterrorism and Effective Death Penalty Act of 1996, §
106(b), Pub.L. No. 104-132, 110 Stat. 1217 (1996) (to be codified at
28 U.S.C. 2244(b)). We deny Zeitvogel's motion, under both the Act and
Using a new conflict of interest label to reassert
an old ineffective assistance of trial counsel claim, Zeitvogel seeks
a second habeas action. Zeitvogel wants to pursue a Sixth Amendment
claim that his trial attorney's assistance was ineffective because the
attorney knew of prison investigative files and a county offense
report showing Zeitvogel identified Dew in an attack on another inmate
in the prison chapel, but the attorney did not introduce the documents
at trial. According to Zeitvogel, this evidence would have
strengthened his self-defense claim by showing Dew had a motive to
kill him. Zeitvogel contends the attorney did not introduce the
documents because the attorney had a conflict of interest, namely,
before Dew's death the attorney had represented Dew on assault charges
arising from the attack in the prison chapel, and had supposedly shown
Dew the documents naming Zeitvogel as an informant.
In our view, Zeitvogel's motion raises nothing new.
Zeitvogel's assertion that his self-defense claim could have been
strengthened by evidence of Dew's motive to attack Zeitvogel has been
raised and rejected before. In his first habeas petition, Zeitvogel
argued his trial attorney was ineffective for not calling certain
inmates to testify that Dew believed Zeitvogel had informed prison
authorities about Dew's attack in the chapel, and Dew wanted revenge.
See Zeitvogel v. Delo, 84 F.3d 276, 282 (8th Cir.1996). At Zeitvogel's
trial, however, other inmates had testified that Dew had threatened to
kill Zeitvogel and the two men had quarreled on the day of Dew's death.
See id. Like the state postconviction court, where Zeitvogel raised
his ineffective assistance claim without presenting any evidence about
the chapel incident, we concluded the testimony of the additional
inmates was "little more than [a] rehash of the testimony given by [the
inmates who testified at Zeitvogel's trial]." Id. In addition, the
physical evidence did not support Zeitvogel's claim that he strangled
Dew with a sheet in self-defense during a struggle, but instead showed
Zeitvogel strangled Dew from behind with a wire, then waited for three
hours before summoning help. See id. at 278. Thus, we held Zeitvogel
had not shown trial counsel's failure to call the additional witnesses
prejudiced him. See id. at 283.
As we see it, the documents Zeitvogel now wants
presented have less persuasive force than the self-defense evidence
presented by Zeitvogel's attorney during trial. The documents showed
only that Zeitvogel stated an inmate called "Crazy" (Dew's "yard name")
was involved in the chapel assault, and Zeitvogel could not identify
him. Rather than presenting this somewhat peripheral evidence of Dew's
motive, the attorney presented the more concrete self-defense evidence
that Dew actually threatened to kill Zeitvogel. See id. at 282.
Although this threat gave the jury a clear understanding of Dew's
intent, the jury rejected Zeitvogel's claim of self-defense. The
attenuated evidence of motive in the documents does not come close to
establishing Zeitvogel's actual innocence of Dew's murder. See Schlup
v. Delo, 513 U.S. 298, ----, 115 S.Ct. 851, 867, 130 L.Ed.2d 808
(1995). Zeitvogel also cannot show prejudice from his attorney's
failure to present the tenuous evidence at trial. Thus, the merits of
Zeitvogel's successive claim cannot be considered. See Zeitvogel, 84
F.3d at 279 (stating pre-Act exceptions of cause and prejudice, and
actual innocence); Felker v. Turpin, 83 F.3d 1303, 1307 (11th
Cir.1996) (same); 28 U.S.C. 2244(b)(3) (as amended).
In an effort to disguise his successive ineffective
assistance claim, Zeitvogel alleges a conflict of interest is the
reason why the attorney did not introduce the documents. This
allegation is a red herring. Even if the attorney had told Dew that
Zeitvogel had implicated Dew in the chapel assault, Dew was dead and
the attorney simply chose not to use the motive evidence in
Zeitvogel's trial. This choice is a question of trial strategy and
effective representation, not of conflicting interest. There was no
conflict, and Zeitvogel's suggestion that the attorney did not present
the evidence because of his former representation of Dew is no more
than unfounded speculation.
In sum, Zeitvogel is not entitled to have his
claims heard in a second habeas action. Zeitvogel cannot satisfy the
Act's requirements in 28 U.S.C. 2244(b). Zeitvogel also loses under
pre-Act exceptions. Further, Zeitvogel did not assert actual innocence
in his first habeas petition or develop an actual innocence argument
in his first habeas brief to this court, see 84 F.3d at 279, even
though first habeas counsel asserted in their 1994 brief that Dew had
learned from his attorney that Zeitvogel cooperated in the assault
investigation and identified Dew as an assailant, see Brief for
Appellant at 51-52, Zeitvogel v. Delo, 84 F.3d 276 (8th Cir.1996) (No.
94-2976). Having rejected Zeitvogel's claim under pre-Act law, we need
not consider his constitutional challenge to the new standard in §
2244(b), as amended. Besides, the challenge was rejected in Felker v.
Turpin, --- U.S. ----, ---- - ----, 116 S.Ct. 2333, 2339-40, 135 L.Ed.2d
827 (1996) (judgments about scope of habeas writ are normally for
Congress; new restrictions on second habeas petitions do not amount to
suppression of writ).
We thus deny Zeitvogel's motion for an order
authorizing the district court to consider his second habeas petition.
We also deny Zeitvogel's motion for a stay of execution because there
are not substantial grounds on which relief might be granted. Delo v.
Stokes, 495 U.S. 320, 321, 110 S.Ct. 1880, 1881, 109 L.Ed.2d 325
(1990) (per curiam). Last, we deny the motion for appointment of
second habeas counsel as moot.