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Robert Earl
O'NEAL II
Classification: Murderer
Characteristics:
Robbery
- Revenge
Number of victims: 2
Date of murders: 1978 / 1984
Date of birth:
September 25,
1961
Victims profile: Elderly
man / Arthur Dade (prison
inmate)
Method of murder: Stabbing
with knife / Stabbing
with an ice pick
type weapon
Location: Missouri, USA
Status: Executed
by lethal injection in Missouri on December 6,
1995
State of Missouri v.
Robert Earl O'Neal
766 S.W. 2d 91 (Mo. Banc 1986)
Robert Earl O'Neal was
executed on December 6, 1995
Case Facts:
On February 2, 1984 inmates from the Special Management Unit at the
Jefferson City Correctional Center in Jefferson City, Missouri were
released to lunch.
During the inmate movement,
correction officers observed inmate Rodney Stewart approach inmate
Arthur Dade. Stewart was carrying an ice cream container such as those
purchased in the inmate commissary. Stewart threw a liquid contained in
the ice cream carton into Dade’s face. As Dade shielded his eyes from
the liquid, inmate Lloyd Schlup approached Dade from behind and grabbed
Dade’s hands.
While Schlup was holding Dade,
inmate Robert Earl O’Neal ran forward and stabbed Dade with an ice pick
type weapon four times in the chest penetrating his hearting and lungs.
As correctional officers pulled
Stewart off Dade, O’Neal ran to a nearby window, broke the window pane
and threw the weapon out the window.
O’Neal then went to a nearby
sink where he washed blood off his hands and arms. Dade ran a short
distance from the scene where he collapsed and died.
Before O’Neal’s arrest,
correctional officers found blood stained clothing in a bathroom marked
with O’Neal’s prison issued numbers. Blood stains were also found on
O’Neal’s clothing, the broken window and the sink where O’Neal washed
his hands. When arrested, O’Neal was observed to have a severe
laceration to the hand he used to stab Dade.
Legal Chronology
1980 02/22 - O’Neal was convicted of Murder
I and Armed Criminal Action in Springfield,
Missouri and sentenced to life and 15 years
consecutive in the Missouri Department of
Corrections.
1981 09/10 - O’ Neal was convicted of Offering Violence to a
Correctional Officer in Jefferson City, Missouri and sentenced to five
years concurrent in the Missouri Department of Corrections.
1983 06/21 - O’Neal was convicted of Offering Violence to an Officer
of a Correctional Institution in Jefferson City, Missouri and sentenced
to seven years concurrent in the Missouri Department of corrections.
06/27 - O’Neal was convicted of Assault I in Jefferson City, Missouri
and sentenced to seven years concurrent in the Missouri Department of
Corrections.
1984
2/3 – Robert O’Neal, assisted by two inmate accomplices, murdered fellow
prison inmate Arthur Dade by stabbing him in the chest with an ice pick
type weapon.
2/7 – An indictment is filed in the Circuit Court of Cole County,
Missouri charging Robert O’Neal and his two accomplices with the capital
murder of Arthur Dade.
1985
3/20-22 – Robert O’Neal is tried and convicted by a jury in Butler
County of the Capital murder of Arthur Dade on change of venue from Cole
County. The jury recommended a sentence of death.
5/14 – The Circuit Court of Cole County denied O’Neal’s motion for a new
trial and sentenced him to death.
5/22 – A Notice of appeal is filed with the Missouri Supreme Court.
1986
10/14 – The Missouri Supreme Court affirmed O’Neal’s conviction and
sentence on direct appeal.
1987
3/9 – The United States Supreme Court declined to grant certiorari.
4/16 – O’Neal filed a Rule 27.26 motion seeking post-conviction relief
in the Circuit Court of Butler County, Missouri.
8/24 – O’Neal filed an amended Rule 27.26 motion through counsel.
9/1 – O’Neal filed an addendum to the amended Rule 27.26 motion.
1988
3/17 – The Circuit Court of Butler County denied the Rule 27.26 motion.
1989
2/14 – The Missouri Supreme Court affirmed the denial of the Rule 27.26
motion.
10/2 – The United States Supreme Court declined to grant certiorari.
10/6 – Robert O’Neal filed a pro se petition for the writ of habeas
corpus in the United States District Court for the Eastern District of
Missouri.
1990
2/15 – Robert O’Neal filed an amended federal habeas corpus petition
through counsel.
11/29 – Federal habeas petition is ordered held in abeyance to allow
petitioner to pursue a state habeas corpus petition.
12/10 – Robert O’Neal filed state habeas corpus petition.
1991
3/5 – The Missouri Supreme Court denied the state’s habeas corpus
petition.
4/15 – Robert O’Neal filed a motion to recall the mandate in the
Missouri Supreme Court.
4/30 – The Missouri Supreme Court denied the motion to recall the man
date.
1992
9/28 – United States Magistrate Judge recommended that the United States
District Court deny the petition for the writ of habeas corpus.
11/20 – The United State District Court for the Eastern District of
Missouri denied the petition for thewrit of habeas corpus.
12/4 – Motion to Alter or Amend Judgment denied.
1993
1/9 – Notice of Appeal filed.
1995
1/6 – The Eighth Circuit Court of Appeals affirmed.
10/2 – Certiorari denied by the United States Supreme Court.
10/27 – Missouri Supreme Court sets O’Neal’s execution date for December
6, 1995.
SEX: M RACE: W TYPE: T MOTIVE:
CE/PC-extremist
MO: Neo-Nazi; killed elderly
man in burglary; stabbed black prison inmate.
DISPOSITION: Life term on
first count; condemned, 1983; executed Dec. 6, 1995.
44 F.3d 655
Robert Earl O'Neal, II,
Appellant, v.
Paul Delo, Appellee.
No. 93-1193
Federal
Circuits, 8th Cir.
March 9, 1995
Before BOWMAN and MAGILL,
Circuit Judges, and HENDREN,*
District Judge.
BOWMAN, Circuit Judge.
Robert Earl O'Neal, II,
appeals from the order of the District Court
denying his 28 U.S.C. Sec . 2254 petition
for a writ of habeas corpus.1
We affirm.
I.
On May 14, 1985, a Missouri
jury found O'Neal, who is white, guilty of
capital murder in the stabbing death of fellow
Missouri State Penitentiary inmate Arthur Dade,
a black.2
The state's evidence suggested a racial motive
for the murder of Dade. The jury imposed the
death penalty.
O'Neal's conviction and
sentence were affirmed on direct appeal. His
Missouri Rule of Criminal Procedure 27.26 (repealed
1988) motion for post-conviction relief was
denied, and the denial of such relief was upheld
on appeal. O'Neal v. State, 766 S.W.2d 91 (Mo.)
(en banc), cert. denied,
493 U.S. 874 , 110 S.Ct. 206, 107 L.Ed.2d
159 (1989).
In October 1989, O'Neal filed
a petition in District Court for a writ of
habeas corpus. He also requested, and was
granted, a stay of execution. The habeas
petition, as amended in February 1990, raises
twenty-nine grounds for relief. The District
Court, adopting the report and recommendation of
the Magistrate Judge to whom the matter had been
referred, concluded that, with respect to
nineteen of these grounds, O'Neal had exhausted
his state remedies,3
but that he had not yet presented the other ten
grounds to the state courts.
Since it appeared that
perhaps these unexhausted grounds still could be
raised in a state habeas action under Missouri
Rule of Civil Procedure 91,4
the federal habeas action was ordered to be held
in abeyance if O'Neal sought to exhaust his
state remedies by seeking habeas relief under
Rule 91.
O'Neal thereafter filed a
Rule 91 petition in the Circuit Court of
Washington County, Missouri. The petition was
transferred to the Missouri Supreme Court and
subsequently denied on procedural grounds.
O'Neal then filed a motion to recall the
mandate, which the Missouri Supreme Court also
denied.
After the state court denied
O'Neal's motion to recall the mandate, the
parties filed additional briefs in the District
Court. The Magistrate Judge recommended that
O'Neal's habeas petition be denied, concluding
that the claims that O'Neal belatedly had
attempted to raise in the state courts by means
of his Rule 91 petition were procedurally
defaulted as a matter of state law and that
O'Neal had failed to show cause and prejudice to
excuse the resulting procedural bar against
litigating the merits of these claims in a
federal habeas proceeding.5
Turning to the nineteen
grounds found to have been exhausted in the
state courts, the Magistrate Judge considered
and rejected each on the merits. He therefore
recommended that O'Neal's habeas petition be
denied. A de novo review by the District Court
resulted in an order adopting the Magistrate
Judge's recommendation and denying O'Neal's
petition.
O'Neal filed a motion under
Federal Rule of Civil Procedure 59(e) to alter,
amend, or set aside the District Court's
judgment. This was denied. O'Neal then filed a
timely notice of appeal and application for a
certificate of probable cause. The District
Court granted the certificate and continued the
stay of execution.
O'Neal's appeal from the
District Court's denial of habeas relief is now
before us. In it he raises eight claims of
error, contending that the District Court should
have granted habeas relief for any or all of the
following reasons: (1) he was deprived of
effective assistance of counsel at trial by
counsel's failure to obtain the necessary
psychiatric examination and tests; (2) he was
deprived of his constitutional rights when the
trial court permitted testimony regarding the
alleged membership of petitioner and his
witnesses in a racist prison organization; (3)
the grand jury that indicted him was not drawn
from a fair cross-section of the community; (4)
the petit jury which convicted and sentenced him
was drawn from a similarly unfair cross-section
of the community; (5) the state court's
incorrect jury instruction on second degree
murder prevented the jury from considering
whether O'Neal was guilty of the lesser-included
offense rather than capital murder; (6) he was
deprived of his right to a fair trial on the
issue of punishment by the prosecutor's improper
closing argument; (7) he was deprived of his
constitutional rights by the court's incorrect
jury instruction on mitigating circumstances
during the sentencing phase of the trial; and
(8) the state trial court deprived O'Neal of his
constitutional right of allocution. Each of
these claims will be considered in turn. We
review the District Court's conclusions of law
de novo, and will accord state court findings of
fact the
28 U.S.C. Sec . 2254(d) presumption
of correctness.
II.
O'Neal first contends that
the District Court erred in denying his claim of
ineffective assistance of trial counsel based on
counsel's failure to obtain the necessary
psychiatric examination and tests. This formed
the basis for claim (C) of O'Neal's habeas
petition, which was denied on the merits by the
District Court after de novo review of the
Magistrate Judge's recommendation.
Applying the standards of
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), the Magistrate
Judge concluded that "petitioner has failed to
overcome the strong presumption that his trial
counsel rendered effective assistance and that
counsel's performance met at least an objective
standard of reasonableness in investigating and
preparing petitioner's defense." O'Neal v. Delo,
No. 89-1893C(6), Report and Recommendation of
United States Magistrate Judge at 20 (E.D.Mo.
Sept. 28, 1992) (Report and Recommendation).
Strickland mandates a two-part
inquiry, with O'Neal first being required to
show "that his counsel's assistance fell below
an objective standard of reasonableness,
considering all of the circumstances faced by
the attorney at the time in question." Sanders
v. Trickey, 875 F.2d 205, 207 (8th Cir.), cert.
denied,
493 U.S. 898 , 110 S.Ct. 252, 107 L.Ed.2d
201 (1989); see also Strickland, 466 U.S.
at 687, 104 S.Ct. at 2064.
Prior to trial, counsel
arranged for O'Neal's examination by Dr. Lucas,
a psychiatrist. In his report, Dr. Lucas
concluded that O'Neal "was basically free of
psychotic illness at the time the murder
occurred." L.W. Lucas, M.D., Initial Psychiatric
Evaluation of Robert Earl O'Neal, Jr., at 5 (March
9, 1985). O'Neal appeared to understand the
nature of the charges against him and the
consequences of conviction and seemed capable of
assisting counsel in his own defense. Id. at 6.
Dr. Lucas also found that O'Neal was responsible
for his conduct at the time of the murder. Id.
at 5.
The doctor believed O'Neal
was competent to stand trial and suggested
further tests only to rule out "the remote
possibility of a progressive organic brain
disease" and to confirm the competency
evaluation. Id. at 6. Dr. Lucas, in a cover
letter to his report, stated, "I feel that these
tests are important to do to rule out the
possibility of a specific, treatable brain
disease, but frankly doubt that they will show
anything positive and am suggesting them for the
sake of thoroughness and because of the gravity
of Mr. O'Neal's legal situation." Letter from
L.W. Lucas, M.D., to David E. Woods (March 11,
1985).
Based on Dr. Lucas's report
and at O'Neal's request, counsel moved at the
pretrial conference for a second psychiatric
examination. The trial court rejected the motion,
grounding its ruling on Dr. Lucas's report and
O'Neal's demeanor. Counsel renewed the motion on
the day trial began. Trial Tr. at 10-12. The
motion, however, was not granted and no further
psychiatric examination was performed.
At the Rule 27.26 hearing,
O'Neal's trial counsel testified that O'Neal was
fully able to assist him in the preparation of
the case and that in his judgment a second
psychiatric examination was unnecessary. The
prosecutor also testified at the Rule 27.26
hearing, stating that he had been acquainted
with O'Neal for several years, that O'Neal was
above-average in intelligence, and that at all
times he appeared competent to stand trial.
In rejecting O'Neal's claim
of ineffective assistance, the Rule 27.26 court,
among other things, made the following findings:
The psychiatric condition of
Movant was not an issue at trial in phase one.
The Movant testified that he was acting in
self-defense when the homicide occurred. Movant
stated that he was attacked by the victim and
that he disarmed the victim. He stabbed the
victim in self-defense. Movant testified to a
clear sequence of events in which he knew what
actions occurred. Pursuant to the testimony of
Movant, he was not acting under the influence of
a mental disease or defect.
Mitigating evidence
concerning the Movant's background was presented
through the testimony of his mother, father,
grandmother, and aunt. Testimony concerning a
deprived background and drug usage was entered
in the second phase.
O'Neal v. State, No.
CV187-52CC, Findings of Fact reprinted in and
incorporated by O'Neal v. State, 766 S.W.2d at
97 (App. A.). The Rule 27.26 court also found
that O'Neal had presented no evidence to show
that he was unable to assist in preparation for
trial or to show that he did not appreciate both
the seriousness of the charge and the fact that
he was sentenced to death. Id. These historical
factual findings are fairly supported by the
record and are entitled to the 28 U.S.C. Sec
. 2254(d) presumption of correctness. See
Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct.
764, 770-71, 66 L.Ed.2d 722 (1981).
O'Neal argues that his trial
counsel's failure to do whatever was necessary
to secure an additional psychiatric examination
and further tests rises to a level of deficiency
sufficient to satisfy the first part of the
Strickland standard. See Strickland, 466 U.S. at
687, 104 S.Ct. at 2064. We disagree. The
objective reasonableness of counsel's
investigation of O'Neal's mental state must be
evaluated in light of the circumstances of this
particular case, with a heavy measure of
deference given to counsel's professional
judgments. See id. at 690-91, 104 S.Ct. at 2066.
Here, counsel obtained a
psychiatric examination close to the time of
trial and the examining physician strongly
vouched for O'Neal's sanity and competency. The
trial court denied counsel's motion for a second
evaluation. Counsel's decision not to
investigate O'Neal's mental state further was
influenced, and properly so, by counsel's
observation of O'Neal's actions and demeanor.
See Strickland, 466 U.S. at 691, 104 S.Ct. at
2066 (noting that counsel's choices regarding
trial strategy often are based "on information
supplied by the defendant").
There is no evidence in the
record that O'Neal exhibited any behavior or
other indicia of an abnormal mental state such
that counsel could not reasonably decide to
proceed without further psychiatric testing;
counsel testified that he believed additional
testing was unnecessary. Post-Conviction Hearing
Tr. at 140-41.
O'Neal has not met the burden
of showing that his counsel's decision not to
pursue a second psychiatric examination and
tests was professionally unreasonable so as to
render counsel constitutionally ineffective. See
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064;
see also Jones v. Murray, 947 F.2d 1106, 1111-13
(4th Cir.1991), cert. denied, --- U.S. ----, 112
S.Ct. 1591, 118 L.Ed.2d 308 (1992) (holding that
counsel's decision not to pursue additional
psychological testing was within reasonable
professional judgment, after initial tests
revealed no mitigating psychiatric conditions).
We therefore agree with the District Court that
this claim of ineffective assistance of trial
counsel must fail.6
III.
O'Neal's second contention is
that the District Court erred in denying habeas
relief on his claim that the trial court
violated various of his constitutional rights by
allowing the prosecution to elicit testimony
concerning the alleged membership of O'Neal and
his witnesses in a racist prison organization,
the Aryan Brotherhood and/or the Aryan Nations
Church of Jesus Christ Christians.
This was the basis for claim
(P) of O'Neal's amended petition for habeas
relief and was addressed on direct appeal in
State v. O'Neal, 718 S.W.2d 498, 503 (Mo.1986)
(en banc), cert. denied,
480 U.S. 926 , 107 S.Ct. 1388, 94 L.Ed.2d
702 (1987). The Magistrate Judge made a
ruling on the merits and concluded that this
ground afforded O'Neal no basis for habeas
relief. This recommendation was adopted after de
novo review by the District Court.
O'Neal cites Dawson v.
Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d
309 (1992), in support of his argument. In
Dawson, the Supreme Court held that, because
membership in organizations is protected under
the First Amendment, the fact of membership in a
white racist organization cannot be raised as
evidence of bad character in the penalty phase
of a capital proceeding where that evidence is
not relevant to the rebuttal of any specific
mitigating evidence. Id. at ---- - ----, 112
S.Ct. at 1098-99.
We decline to reach the
question of whether Dawson is a new rule whose
application is barred by the retroactivity rule
of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060,
103 L.Ed.2d 334 (1989), because the facts of the
case at bar are easily distinguished from Dawson.
In Dawson, both the murder
victim and the defendant were white;
consequently, the defendant's membership in a
white racist organization, the Aryan Brotherhood,
was not relevant to any possible motive for the
murder. Aryan Brotherhood evidence, offered
solely as evidence of the defendant's bad
character, went to the defendant's abstract
beliefs rather than to rebuttal of specific
mitigating factors presented at sentencing.
The evidence of defendant's
membership in the Aryan Brotherhood thus was not
relevant to the question of whether the
defendant should receive the death penalty, and
therefore the admission of this evidence
violated the First and Fourteenth Amendments of
the United States Constitution. Dawson, 503 U.S.
at ----, 112 S.Ct. at 1099.
In the case at hand, O'Neal
is white and Dade, the victim, was black. The
question of racial animus as a motive for Dade's
murder was an issue in the trial and O'Neal's
membership in the Aryan Brotherhood was thus
relevant. See State v. O'Neal, 718 S.W.2d at
503. Several of the witnesses called to testify
on O'Neal's behalf also were alleged members of
the Aryan Brotherhood or the Aryan Nations
Church of Jesus Christ Christian, which "might
tend to demonstrate bias towards appellant and
reflect upon the truth of the evidence elicited
from them that the killing was committed in self-defense."
Id.; see also United States v. Abel, 469 U.S.
45, 52, 105 S.Ct. 465, 469, 83 L.Ed.2d 450
(1984).
Unlike the situation in
Dawson, testimony regarding the association of
O'Neal and his witnesses with these
organizations was probative with respect to both
his motive and the credibility of his witnesses.
We conclude that, contrary to O'Neal's
contention, the admission of this evidence did
not deny O'Neal a constitutionally fair trial or
violate any of his First, Fifth, Eighth, or
Fourteenth Amendment rights.
IV.
O'Neal's third contention is
that the District Court erred in failing to
grant habeas relief on the ground that the grand
jury that indicted O'Neal was unconstitutionally
selected because it was not drawn from a fair
cross-section of the community. This was the
basis for claim (A) of O'Neal's amended petition
for habeas relief. The Magistrate Judge
suggested that it should be denied, a
recommendation adopted by the District Court
after de novo review.
As the Magistrate Judge noted,
"The burden of proving intentional and
purposeful discrimination is on the petitioner.
In the instant case, no discrimination
whatsoever has been shown in compiling the grand
jury list." O'Neal v. Delo, No. 89-1893C(b),
Report and Recommendation at 16 (citation
omitted). We find no reason to disagree with the
District Court's denial of habeas relief on this
ground.
Jury selection processes, in
order to conform to constitutional requirements,
must draw prospective jurors from a fair cross-section
of the community. United States v. Brickey, 426
F.2d 680, 683 (8th Cir.), cert. denied,
400 U.S. 828 , 91 S.Ct. 55, 27 L.Ed.2d 57
(1970). In Brickey, this Court made clear
that a fair cross-section means that "there must
not be any systematic, intentional or negligent
exclusion of persons or groups" from the grand
jury list. Id.
No single selection system is
mandated by Brickey. In fact, "[m]any methods of
jury selection have been used and approved by
the courts where no intentional or systematic
discrimination has been proved, and the burden
of proving intentional and purposeful
discrimination rests on the [petitioner]." Id.
The burden of proving that the jury list was
compiled in a discriminatory manner thus lies
with O'Neal.
The record clearly
establishes that O'Neal has failed to prove
purposeful discrimination in the selection of
his grand jury. He has made no showing that the
sheriff's use of maps, phone books, and personal
references to construct the jury list
constituted discrimination of any kind.
Further, O'Neal did not
demonstrate that the grand jury, consisting of
seven men and five women, ten whites and two
blacks, excluded any distinctive group to which
he belonged or failed to draw from the townships
of Butler County in proportion to their size, as
then required by state law. See Mo.Rev.Stat.
Sec. 540.020(1) (1986) (repealed 1989). We find
that O'Neal has failed to demonstrate any equal
protection or due process violation in the grand
jury selection procedure. Accordingly, we affirm
the District Court's denial of habeas relief on
this claim.
V.
O'Neal's fourth contention is
that the District Court erred in determining
that the venire pool from which the petit jury
was selected was drawn from a fair cross-section
of the community. This was ground (B) of his
amended petition for habeas relief and was
rejected by the Magistrate Judge, who noted that
O'Neal was "unable to demonstrate any error of
constitutional magnitude" or to show "a
reasonable probability that, but for the
purported trial error, the outcome of the
proceedings would have been different." O'Neal
v. Delo, No. 89-1893C(6), Report and
Recommendation at 17. This recommendation was
adopted by the District Court after de novo
review.
O'Neal's case was tried on a
change of venue from Cole County (the location
of the penitentiary in which the murder occurred)
to Butler County. Pursuant to Missouri Revised
Statutes Sec. 494.250 (1986) (repealed 1989),
the Butler County sheriff was instructed by the
court to select additional venirepersons, i.e.,
"bystander jurors" or "talespersons," to
increase the size of the pool from which
O'Neal's jury would be chosen. O'Neal claims
that in addition to talespersons selected at
random from a coroner's inquest list, some of
the special venirepersons called by the
sheriff's office were acquainted with the
sheriff or with the sheriff's staff.7
Where the sheriff and his
staff do not participate in the murder
investigation or prosecution in any way, their
acquaintance with some venirepersons does not
invalidate the selection process. See State v.
Sloan, 666 S.W.2d 787, 791 (Mo.Ct.App.1984) (concluding
that where sheriff and staff were not involved
in investigation and arrest of defendant, and
crime occurred in another county, the mere fact
that sheriff and deputies were acquainted with
talesperson jurors did not render sheriff and
deputy ineligible to participate in the
selection process). Nor does the sheriff's mere
acquaintance with several of the special
venirepersons invalidate O'Neal's conviction.
See Henson v. Wyrick, 634 F.2d 1080, 1084 (8th
Cir.1980), cert. denied,
450 U.S. 958 , 101 S.Ct. 1417, 67 L.Ed.2d
383 (1981).
In Russell v. Wyrick, another
decision addressing the Butler County process
for selecting talespersons, we found that it did
not violate the petitioner's due process rights
to have the sheriff or the sheriff's office
staff select bystander jurors for a case in
which the sheriff's office was not involved in
the investigation or prosecution of the crime
and in which not all venirepersons were
acquaintances of the sheriff. Russell v. Wyrick,
736 F.2d 462, 464 (8th Cir.1984), cert. denied,
469 U.S. 1219 , 105 S.Ct. 1203, 84 L.Ed.2d
346 (1985).
Thus, neither the
participation of the sheriff's staff in
selecting special additional venirepersons nor
the staff's acquaintance with some of the
venirepersons constituted constitutional error
in the instant case.
In addition, we agree with
the Magistrate Judge that O'Neal did not "demonstrate
a reasonable probability that, but for the
purported trial error, the outcome of the
proceedings would have been different." O'Neal
v. Delo, No. 89-1893C(6), Report and
Recommendation at 17. Only one juror called by
the sheriff served on the jury. The juror was
not acquainted with the sheriff or his staff and
stated during voir dire that he could be fair
and impartial.
O'Neal has not argued or
demonstrated that the jury was biased or
otherwise unfair in any manner. We therefore
affirm the District Court's denial of habeas
relief on O'Neal's claim that the state failed
to provide trial by a fair and impartial jury
selected from a fair cross-section of the
community.
VI.
Petitioner's fifth, sixth,
seventh, and eighth contentions assert claims
((F), (R), (H), and (DD), respectively) that
were raised for the first time in the state
courts in O'Neal's Rule 91 state habeas action
and denied by the Missouri Supreme Court as
being procedurally defaulted. O'Neal then filed
a motion in that court asking the court to
recall its mandate.
In his motion, O'Neal recast
these claims in terms of ineffective assistance
of counsel, alleging that his counsel on direct
appeal had been deficient in failing to raise
these claims of trial error. This motion was
overruled by the Missouri Supreme Court, which
held that all of these claims had "been finally
determined or are now procedurally barred, and
said motion discloses no other ground that is
not procedurally barred." Missouri v. O'Neal,
No. 67142 (Mo. April 30, 1991).
The District Court, in
adopting the Magistrate Judge's report and
recommendation, determined that O'Neal had
procedurally defaulted these claims in the state
courts and that, as a result, they were
procedurally barred from federal habeas review.
Similarly, the District Court determined that
O'Neal had not shown cause and prejudice to
avoid the procedural bar, nor had he shown
actual innocence of the crime of conviction or
of the penalty imposed.
In considering the "actual
innocence" exception to the procedural bar
otherwise found to exist, the Magistrate Judge
thoroughly reviewed the merits of each of these
claims and found all of them to be meritless;
after de novo review the District Court adopted
the Magistrate Judge's conclusions.
O'Neal argues that in finding
these claims procedurally barred the District
Court erred by overlooking the significance of
his motion to the Missouri Supreme Court to
recall its mandate, in which O'Neal alleged that
his appellate counsel had been constitutionally
ineffective in failing to raise these claims on
direct appeal.
He points out that, under
Missouri law, claims of ineffective assistance
of appellate counsel may properly be brought for
the first time in a motion to recall the
mandate. See State v. Sumlin, 820 S.W.2d 487,
489 (Mo.1991) (en banc). Our cases acknowledge
this procedural rule. See Hall v. Delo, 41 F.3d
1248, 1250 (8th Cir.1994); Jones v. Jerrison, 20
F.3d 849, 856 (8th Cir.1994) ("In Missouri, a
motion to recall the mandate is proper only when
a state prisoner alleges that his appellate
counsel was ineffective or argues that the
appellate court's opinion directly conflicts
with a decision of the United States Supreme
Court.").
O'Neal further argues that
determination of whether his appellate counsel
was ineffective necessarily involves
consideration of the merits of the issues
counsel failed to raise on direct appeal; that
these issues therefore were fairly presented to
the Missouri Supreme Court; and that, there
having been no procedural default on these
issues, we are free to consider them. We
disagree.
O'Neal is correct that
Missouri procedure ordinarily allows a claim of
ineffective assistance of direct appellate
counsel to be raised by motion to recall the
appellate court's mandate. However, O'Neal's
argument ignores the extreme delay that occurred
here before he finally presented his ineffective
assistance claim in his belated motion to recall
the mandate.
His direct appeal to the
Missouri Supreme Court was decided in October
1986, with the court affirming his conviction
and the sentence of death. He subsequently filed
a motion in state court for post-conviction
relief pursuant to Missouri Rule of Criminal
Procedure 27.26.
Post-conviction relief was
denied in 1988 and that denial was affirmed by
the Missouri Supreme Court in 1989; nowhere in
those proceedings did O'Neal raise his
ineffective-assistance-of-appellate-counsel
claim. He then sought federal habeas relief in
the District Court, and in October 1989 obtained
a stay of execution pending resolution of the
federal proceedings.
Finding that O'Neal's amended
federal habeas petition, which was filed in
February 1990, contained claims that had not
been exhausted in the state courts, the District
Court in November 1990 ordered the federal
habeas proceedings held in abeyance, with the
stay of execution remaining in place, while
O'Neal pursued his remedies in state court under
Rule 91 as to his unexhausted claims.
His petition for writ of
habeas corpus pursuant to Rule 91 was filed in
December 1990. The Rule 91 petition did not
assert any claim of ineffective assistance of
appellate counsel, and was denied by the
Missouri Supreme Court on procedural grounds in
March 1991.
Only later, in April 1991,
did O'Neal for the first time raise his claim of
ineffective assistance of appellate counsel,
doing so in his motion to recall the mandate.
Against this backdrop of protracted litigation,
with O'Neal having had earlier opportunities to
raise this claim, the Missouri Supreme Court
denied the motion, again resting its order on
procedural grounds.
As the foregoing procedural
history establishes, O'Neal could have raised
his ineffective-assistance-of-appellate-counsel
claim in a motion to recall the mandate anytime
after the conclusion of his direct appeal to the
Missouri Supreme Court in October 1986, yet he
waited until April 1991 to do so, even though
throughout this period he was actively engaged
in litigation to overturn his conviction and
sentence.
We do not know whether this
delay of some four-and-a-half years was
inadvertent, or whether it was deliberate.
Either way, we would be reluctant in these
circumstances to second-guess the Missouri
Supreme Court's determination that, as a matter
of state law, the claim had been procedurally
defaulted.
For us to hold that O'Neal
raised this claim in an appropriate and timely
manner, despite the Missouri Supreme Court's
rejection of the claim on procedural grounds,
would entail the approval of unwarranted delay
in asserting the claim and would encourage the
deliberate withholding of such claims until the
last possible moment. We therefore agree with
the District Court that O'Neal's claims (F),
(R), (H), and (DD) are procedurally barred from
federal habeas corpus review.
We also agree with the
District Court that O'Neal has failed to show
cause and prejudice to overcome the procedural
bar, and that the asserted grounds for relief do
not satisfy the miscarriage of justice exception
to the cause and prejudice requirement. In
reaching these conclusions we necessarily have
fully considered the merits of claims (F), (R),
(H), and (DD). We conclude that all of them lack
merit. Thus, even if these claims were not
procedurally barred, they still would afford
O'Neal no basis for habeas relief.
VII.
For the reasons stated, we
affirm the order of the District Court denying
O'Neal's petition for a writ of habeas corpus.
*****
*
The
HONORABLE JIMM LARRY HENDREN, United States
District Judge for the Western District of
Arkansas, sitting by designation
1
The
Honorable George F. Gunn, Jr., United States
District Judge for the Eastern District of
Missouri, adopting the report and recommendation
of the Honorable David D. Noce, United States
Magistrate Judge for the Eastern District of
Missouri
2
A full
statement of the facts of the case can be found
in State v. O'Neal, 718 S.W.2d 498, 500
(Mo.1986) (en banc), cert. denied,
480 U.S. 926 , 107 S.Ct. 1388, 94 L.Ed.2d
702 (1987)
3
Claims
exhausted, and the alleged constitutional
violations, included the following: (A) that the
grand jury was not drawn from a pool
representing a fair cross-section of the
community (violating the Fifth, Sixth, Eighth,
and Fourteenth Amendments); (B) that some
members of the petit jury were not drawn from a
pool representing a fair cross-section of the
community (violating the Fifth, Sixth, Eighth,
and Fourteenth Amendments); (C) that O'Neal was
denied effective assistance of counsel in that
his counsel failed to obtain necessary
psychiatric tests and examinations (violating
the Fifth, Sixth, and Fourteenth Amendments);
(D) that the trial court denied motions for a
psychiatric examination although O'Neal had
noted his intent to rely on an insanity defense
(violating the Fifth, Sixth, Eighth, and
Fourteenth Amendments); (E) that the court
similarly denied O'Neal's second motion for a
psychiatric examination although this was a
crucial issue in the sentencing phase (violating
the Fifth, Sixth, Eighth, and Fourteenth
Amendments); (J) that a prejudicial photograph
was erroneously admitted into evidence during
the sentencing phase (violating the Fifth,
Eighth, and Fourteenth Amendments); (K) that the
Missouri statutory scheme allows the prosecuting
attorney to exercise unbridled discretion as to
who is to be subjected to the death penalty (violating
the Fifth, Eighth, and Fourteenth Amendments);
(L) that O'Neal was forced to stand trial bound
and shackled (violating the Fifth, Sixth, Eighth,
and Fourteenth Amendments); (M) that defense
witnesses were compelled to testify attired in
prison garb, bound, and shackled (violating the
Fifth, Sixth, and Fourteenth Amendments); (N)
that a potential juror was improperly excluded (violating
the Fifth, Sixth, Eighth, and Fourteenth
Amendments); (P) that the court allowed the
prosecution to elicit testimony about the
alleged membership of O'Neal and his witnesses
in the Aryan Brotherhood and/or the Aryan
Nations Church of Jesus Christ Christian (violating
the Fifth, Sixth, and Fourteenth Amendments);
(Q) that O'Neal was denied effective assistance
of counsel when his attorney failed to
investigate and determine the differences
between the Aryan Brotherhood and the Aryan
Nations Church of Christ Christian (violating
the Fifth, Sixth, and Fourteenth Amendments);
(T) that the court allowed the prosecution to
prevent the testimony of Earl Bays and Ivan
Johnson during the penalty phase of the trial (violating
the Fifth, Eighth, and Fourteenth Amendments);
(U) that the court sustained prosecution
challenges for cause to veniremen expressing
opposition to the death penalty, depriving
O'Neal of his right to a fair and impartial jury
representative of the community (violating the
Fifth, Sixth, and Fourteenth Amendments); (V)
that the court's refusal to allow separate
juries for the guilt and penalty phases of the
trial deprived O'Neal of his right to a fair
trial (violating the Fifth, Sixth, and
Fourteenth Amendments); (W) that the death
penalty was disproportionately severe in light
of the circumstances of the offense and the
mitigating evidence (violating the Fifth, Eighth,
and Fourteenth Amendments); (X) that the court
denied application for a writ of habeas corpus
ad testificandum for a New Mexico inmate who was
a necessary and material defense witness at the
penalty phase (violating the Fifth, Sixth,
Eighth, and Fourteenth Amendments); (Y) that
O'Neal was deprived of his rights of
confrontation, participation in his defense, due
process, and equal protection by his exclusion
from a hearing on his motion to quash the
special venire (violating the Fifth, Sixth, and
Fourteenth Amendments); and (Z) that the facts
proved in the guilt phase and the aggravating
circumstances presented at the penalty phase
were less egregious than in capital murder cases
where defendants had received life sentences,
depriving O'Neal of equal protection under the
law and his right to be free of cruel and
unusual punishment (violating the Fifth, Sixth,
and Fourteenth Amendments)
4
The
unexhausted claims were: (F) that the trial
court gave an incorrect instruction on the
lesser-included offense of second degree murder
(violating the Fifth, Sixth, Eighth, and
Fourteenth Amendments); (G) that O'Neal was
denied effective assistance of counsel because
his counsel failed to object to the instruction
given on second degree murder and did not submit
a correctly worded instruction on that offense (violating
the Fifth, Sixth, and Fourteenth Amendments);
(H) that the court incorrectly instructed the
jury during the sentencing phase that it had to
be unanimous in finding the existence of a
mitigating circumstance (violating the Fifth,
Eighth, and Fourteenth Amendments); (I) that his
counsel was ineffective in failing to object to
the instruction given on mitigating
circumstances (violating the Fifth, Sixth, and
Fourteenth Amendments); (O) that his counsel was
ineffective in eliciting the information that
two veniremen would not consider returning the
death penalty under any circumstances (violating
the Fifth, Sixth, and Fourteenth Amendments);
(R) that the prosecution's closing argument
during the sentencing phase deprived O'Neal of a
fair trial (violating the Fifth, Sixth, and
Fourteenth Amendments); (S) that O'Neal's
counsel was ineffective in failing to object to
parts of the prosecutor's closing argument
during the sentencing phase of trial (violating
the Fifth, Sixth, and Fourteenth Amendments); (AA)
that the prosecutor failed to disclose
exculpatory evidence (violating the Fifth,
Eighth, and Fourteenth Amendments); (BB) that
the petit jury was not drawn from a pool
representing a fair cross-section of the
community due to the absence of black jurors (violating
the Fifth, Sixth, Eighth, and Fourteenth
Amendments); and (CC) that the cumulative effect
of all the alleged errors deprived O'Neal of his
due process rights to a fair trial and of his
right to be free of cruel and unusual punishment
(violating the Fifth, Sixth, Eighth, and
Fourteenth Amendments)
5
An
additional ground for habeas relief (DD) was
stated in O'Neal's amended petition of April 10,
1992. O'Neal alleged that the trial court's
refusal to allow him to address the jury during
the penalty phase of the trial was
unconstitutional. This claim was found by the
magistrate judge to be procedurally barred. See
infra part VI
6
Our
resolution of the deficient-performance issue
makes it unnecessary for us to reach the
prejudice aspect of the Strickland inquiry. For
the sake of completeness, however, we note that
based on our review of the record it is clear
that O'Neal also has failed to show that he was
prejudiced at either the guilt phase or the
sentencing phase of his trial by counsel's
failure to obtain an additional psychiatric
examination and tests
7
One
special venireperson was the office manager's
father, another was a deputy's neighbor, and
another a deputy's cousin. None of the three
served on the jury that convicted O'Neal. Of the
additional venirepersons called by the Butler
County sheriff's office, only one served on the
jury. A second was an alternate but did not
participate in deliberations. Neither was
acquainted with any of the sheriff's office
staff
