Missouri said on Tuesday there is no need to suspend executions. The state uses pentobarbital, not the two-chemical combination used in Arizona, and its execution procedure is proper, Koster's office said. Worthington was one of more than a dozen death row prisoners who are challenging Missouri's lethal injection protocols in a federal lawsuit. A hearing in that case is set for Sept. 9 in the U.S. Court of Appeals for the Eighth Circuit in St. Louis.
 

Angelbeck said she wasn't sure how she would feel when the execution was over, but hoped it would bring some peace. “I won’t have to think about what he did to her any more,” she said. “I can just remember my Mindy; she’ll always be in my heart.” Worthington, when asked what he would say to Griffin's parents, directed his comments to her mother. "If my life would bring her peace and bring Mindy back, I'd be fine with that. But it won't," he said. "It doesn't bring peace or closure. She's still going to have her broken heart."
 

The U. S. Supreme Court has refused to hear another appeal from prison inmate Michael Worthington, who is scheduled to be executed just after midnight tonight. Worthington has been convincted of killing a Lake St. Louis woman in 1995. Worthington claims drugs and alcohol robbed him of his memories of that night, but also claims drugs and alcohol make it unlikely he committed the crime.
 

Michael Worthington

State of Missouri v. Michael Shane Worthington

Missouri Supreme Court Case Number: SC81356

Case Facts:

On September 29, 1995, appellant, Worthington, and a friend from work, Jill Morehead, were at his condominium in Lake St. Louis, watching television.

At about 4:00 p.m., they left to pick up their paychecks from their employer, a local supermarket. They returned to the condo and had dinner and drinks. They then went to a nightclub where each had three drinks.

After about two hours, Worthington and Morehead drove to Jennings where Worthington told Morehead he had to pick up money owed to him by a friend. Worthington testified he actually went to pick up drugs. Morehead stayed in her vehicle, while Worthington was in the house for about 15 minutes.

They drove back to his condo where he left Morehead. Morehead left the condo when Worthington did not return after about 45 minutes.

Later that night, Worthington saw that the kitchen window was open in the condominium of his neighbor, Melinda Griffin. Worthington had seen Ms. Griffin around the condominium complex.

He got a razor blade and gloves, and when he returned to her condo, he saw that a bathroom light had been turned on. Worthington cut through the screen. He confronted Ms. Griffin in the bedroom. He covered her mouth to stop her screams and strangled her until she became unconscious.

Worthington began to rape her and she regained consciousness. Ms. Griffin fought Worthington, and he beat her and strangled her to death. The wounds on her neck showed that Worthington used a rope or cord in addition to his hands to strangle her. He stole her jewelry, credit cards, mobile phone, keys, and her car.

The next morning, September 30, 1995, a police officer pulled Worthington over. Worthington was driving Ms. Griffin's car. The officer noticed a woman's items in the car such as make-up and shoes, but the car had not been reported stolen.

The next day, October 1, a neighbor discovered Ms. Griffin's body. When police arrived, they found the screen in the kitchen window had been cut to gain entry. They found Ms. Griffin's body lying bruised, bloody, and unclothed at the foot of the bed, with a lace stocking draped across it. All the bedroom drawers had been pulled open. DNA testing later established that semen found on Ms. Griffin's body came from Worthington.

Police officers found Worthington that evening, but when he saw the police, he pulled out a knife, held it to his throat, and threatened to commit suicide. Police officers convinced him to put the knife down and brought him into custody. Worthington was wearing a fanny pack containing jewelry and keys belonging to Ms. Griffin.

At the police station, Worthington relayed his story of four days of drinking and getting high. After being presented with the evidence against him, Worthington confessed to the killing but could not remember the details since, he said, he was prone to blackouts when using alcohol and cocaine.

At the time the offenses occurred, Worthington said he was extremely high on Prozac, cocaine, marijuana, and alcohol. Worthington also said that two friends, Darick and Anthony, helped him with the burglary. However, this story was inconsistent with the physical evidence and with subsequent statements made by Worthington.

Worthington pleaded guilty to the crimes charged. The judge imposed the death penalty for the murder conviction, as well as the prison terms for the other offenses. Worthington does not challenge the plea and sentences on the other offenses; his appeal here concerns only the death penalty.
 

State v. Worthington, 8 S.W.3d 83 (Mo. 1999). (Direct Appeal)

Supreme Court of Missouri

SC85783

Michael Shane Worthington, Appellant,

v.

State of Missouri, Respondent.

31/05/2005

Appeal From Circuit Court of St. Charles County, Hon. Nancy L. Schneider

Laura Denvir Stith, Judge

OPINION

Michael Shane Worthington pled guilty to the first-degree murder of Melinda Griffin. Mr. Worthington then chose to try the penalty phase of his trial to the judge rather than to a jury. The judge imposed the death penalty. This Court affirmed his conviction and death sentence, and his related convictions for first-degree burglary and forcible rape, in State v. Worthington , 8 S.W.3d 83 (Mo. banc 1999).

Mr. Worthington then sought post-conviction relief, which was denied. Mr. Worthington now appeals that ruling, arguing that the motion court should have found that trial counsel was ineffective in numerous respects, including unreasonable trial strategy in failing to sufficiently investigate and present evidence about certain aspects of his social history, failing to object to certain evidence, failing to object to the trial judge's refusal to recuse herself and failure to call certain witnesses.

He further alleges that the sentencing and post-conviction judges were not impartial and that the State does not have the ability to perform constitutional executions. This Court has exclusive jurisdiction because the death penalty was imposed. Mo. Const. art. V, sec.10; Order of June 16, 1988 . For the reasons set out below, this Court finds that the motion court did not err in denying post-conviction relief. Affirmed.

I. BACKGROUND FACTS

On direct appeal, this Court found the following facts: (FN1)

"On September 29, 1995, appellant, Worthington, and a friend from work, Jill Morehead, were at his condominium in Lake St. Louis, watching television. At about 4:00 p.m., they left to pick up their paychecks from their employer, a local supermarket. They returned to the condo and had dinner and drinks. They then went to a nightclub where each had three drinks.

"After about two hours, Worthington and Morehead drove to Jennings where Worthington told Morehead he had to pick up money owed to him by a friend. Worthington later testified that he actually went to pick up drugs. Morehead stayed in her vehicle, while Worthington was in the house for about 15 minutes. They drove back to his condo where he left Morehead. Morehead left the condo when Worthington did not return after about 45 minutes.

"Later that night, Worthington saw that the kitchen window was open in the condominium of his neighbor, Melinda Griffin. Worthington had seen Ms. Griffin around the condominium complex. He got a razor blade and gloves, and when he returned to her condo, he saw that a bathroom light had been turned on. Worthington cut through the screen.

"He confronted Ms. Griffin in the bedroom. He covered her mouth to stop her screams and strangled her until she became unconscious. Worthington began to rape her and she regained consciousness. Worthington raped Ms. Griffin with such force that he bruised the inside of her vagina, tore both labia minora, and made a large, deep tear between her vagina and anus. Ms. Griffin fought Worthington, and he beat her and strangled her to death. The wounds on her neck showed that Worthington used a rope or cord in addition to his hands to strangle her. He stole her jewelry, credit cards, mobile phone, keys, and her car.

"The next morning, September 30, 1995, a police officer pulled Worthington over, driving Ms. Griffin's car. The officer noticed a woman's items in the car such as make-up and shoes, but the car had not been reported stolen.

"The next day, October 1, a neighbor discovered Ms. Griffin's body. When police arrived, they found the screen in the kitchen window had been cut to gain entry. They found Ms. Griffin's body lying bruised, bloody, and naked at the foot of the bed, with a lace stocking draped across it. All the bedroom drawers had been pulled open. DNA testing later established that semen found on Ms. Griffin's body came from Worthington.

"Police officers found Worthington that evening, but when he saw the police he pulled out a knife, held it to his throat, and threatened to commit suicide. Police officers convinced him to put the knife down and brought him into custody. Worthington was wearing a fanny pack containing jewelry and keys belonging to Ms. Griffin.

"At the police station, Worthington relayed his story of four days of drinking and getting high. After being presented with the evidence against him, Worthington confessed to the killing but could not remember the details since, he said, he was prone to blackouts when using alcohol and cocaine.

"At the time the offenses occurred, Worthington said he was extremely high on Prozac, cocaine, marijuana, and alcohol. He also said that two friends, Darick and Anthony, helped him with the burglary. However, this story was inconsistent with the physical evidence and with subsequent statements made by Worthington. Worthington pleaded guilty to the crimes charged. The judge imposed the death penalty for the murder conviction, as well as prison terms for the other offenses."

II. STANDARDS FOR REVIEW OF DENIAL OF POST-CONVICTION RELIEF

This Court's review of the motion court's denial of post-conviction relief is limited to a determination of whether the findings of fact and conclusions of law are clearly erroneous. Moss v. State , 10 S.W.3d 508, 511 (Mo. banc 2000). A judgment is clearly erroneous when, in light of the entire record, "the court is left with the definite and firm impression that a mistake has been made." Id. The motion court's findings are presumed correct. Black v. State , 151 S.W.3d 49, 54 (Mo. banc 2004).

In order to be entitled to post-conviction relief, a movant is required to show by a preponderance of the evidence that: 1) counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances, and 2) counsel's deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Deck v. State, 68 S.W.3d 418, 425 (Mo. banc 2002).

Mr. Worthington bears a heavy burden in attempting to satisfy the first prong of the Strickland test, for he must overcome a strong presumption that counsel provided competent representation by showing "that counsel's representation fell below an objective standard of reasonableness." Deck, 68 S.W.3d at 425-426. See also Rule 29.15(i); Middleton v. State, 103 S.W.3d 726, 732 (Mo. banc 2003).

This standard is met by identifying specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance. Id. at 425 . It is presumed that counsel's conduct was reasonable and effective. Clayton v. State, 63 S.W.3d 201, 206 (Mo. banc 2001) . "Reasonable choices of trial strategy, no matter how ill fated they appear in hindsight, cannot serve as a basis for a claim of ineffective assistance." Cole v. State , 152 S.W.3d 267, 270 (Mo. banc 2004); Knese v. State , 85 S.W.3d 628, 633 (Mo. banc 2002) . It is also not ineffective to pursue one reasonable trial strategy to the exclusion of another reasonable trial strategy. Clayton , 63 S.W.3d at 207.

To satisfy the second prong of the Strickland test, a movant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Middleton, 103 S.W.3d at 733. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "In order to show prejudice in a guilty plea case, a defendant must prove that, but for the errors of counsel, he would not have pled guilty and would have demanded a trial." State v. Roll , 942 S.W.2d 370, 375 (Mo. banc 1997).

Because the penalty phase was tried to a judge, it is particularly difficult to meet this standard. In court-tried cases judges are given great latitude in the admission of evidence because of the presumption that they will not give weight to incompetent evidence. Pike v. Pike, 609 S.W.2d 397, 403 (Mo. banc 1980) . "Because of this, it is difficult to base reversible error on the erroneous admission of evidence in a court-tried case." Blackburn v. Richardson, 849 S.W.2d 281, 291 (Mo. App. S.D. 1993).

Erroneous admission of such evidence constitutes harmless error if other properly admitted evidence supports the judgment. Id. Further, because "judges are presumed to not consider improper evidence at sentencing," State v. Carter , 955 S.W.2d 548, 560 (Mo. banc 1997) , "this Court presumes that inadmissible evidence" relevant to sentencing "is neither prejudicial nor fundamentally unfair in court-tried matters." Id.

III. GUILT PHASE ERROR - FAILURE TO INVESTIGATE

By pleading guilty, Mr. Worthington waived any claim that counsel was ineffective except to the extent that the conduct affected the voluntariness and knowledge with which the plea was made. Roll , 942 S.W.2d at 375 . "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland , 466 U.S. at 691.

Mr. Worthington argues counsel acted unreasonably in not further investigating his social and medical history. In regard to the guilt phase, he alleges that had an adequate investigation been done he would not have pled guilty but would have proceeded to trial using a diminished capacity defense.

In support, at the post-conviction hearing, he presented the testimony of three experts, Dr. Jonathan Pincus, Dr. Dennis Cowan, and Dr. Robert Smith, who together testified that he had a variety of serious mental and physical disorders, including Tourette's syndrome, attention deficit hyperactivity, obsessive compulsive disorder, bipolar disorder, frontal lobe cerebral brain dysfunction, and post-traumatic stress disorder. (FN2)

The motion court was not required to believe these doctors' diagnoses, which were not otherwise supported by prior medical opinions and which were based on very limited experience with Mr. Worthington. Dr. Pincus' diagnosis was based on a single meeting more than four years after the murder and rape. Similarly, Dr. Smith examined Mr. Worthington over four years after the crime and the majority of the tests he administered related to substance abuse issues. Dr. Cowan also had just a single meeting with Mr. Worthington almost five years after the murder.

Because of their limited familiarity with him, these experts necessarily largely based their conclusions on his own self-reporting of symptoms, history, and condition. While the motion court could have accepted their conclusions, it was not required to do so. It found that Mr. Worthington was not a reliable or credible witness due to his conflicting testimony throughout the proceedings, and this greatly undermined the reliability of these experts' diagnoses.

Furthermore, the fact that Mr. Worthington found experts who were willing to testify at the post-conviction stage that he had a variety of medical disorders does not mean that counsel were ineffective in failing to find similar experts before deciding that a diminished capacity defense would not be effective and recommending that Mr. Worthington plead guilty. While he argues that their decision not to pursue this defense resulted from lead defense counsel's refusal to provide necessary funds for investigation and his failure to seek such funds from the State as permitted by Ake v. Oklahoma , 470 U.S. 68 (1985) , the record supports the motion court's contrary conclusions.

Defense counsel were seasoned capital-litigation attorneys, with extensive experience in criminal and death penalty litigation. Prior to the work done on this case, Mr. Green had been involved in 40 to 50 capital cases. He had received training from the state and had attended national seminars and symposiums on how to litigate a capital case. Mr. Rosenblum's area of practice was exclusively criminal defense. He had tried 150 or more jury trials, with over 50 being homicide cases and seven being capital cases.

In a deposition taken for the post-conviction hearing, Mr. Rosenblum stated that he had initially considered and investigated the benefit of presenting a diminished capacity defense. To assist him in deciding whether to take that approach, he had hired a psychiatrist, Dr. Kevin Miller, who met with Mr. Worthington twice and reviewed his records. But, like the State's expert, Dr. Miller found that Mr. Worthington did not suffer from mental disease or defect at the time of the offense and that he could appreciate the nature, quality, and wrongfulness of his conduct.

Mr. Rosenblum testified that he believed that in general, diminished capacity defenses do not go over well and are difficult to defend, that he believed that it would be an "uphill battle" to present the defens e with all the evidence of Mr. Worthington's drug and alcohol abuse, and that the portion of Dr. Miler's report that supported the defense was outweighed by the negative effect it might have. In particular, he feared Dr. Miller's report would corroborate Dr. Givon's anti-social personality and malingering diagnoses, and so he made a strategic decision not to pursue the diminished capacity defense.

While defense counsel could have continued to consult additional experts in the hope of finding one who might support a diminished capacity defense, counsel is not required to seek out an expert who might provide more helpful testimony. Taylor v. State, 126 S.W.3d 755, 762 (Mo. banc 2004). Counsel is entitled to instead pursue other reasonable defense strategies. Id.

Further, there was no showing that lack of funds played an improper part in that decision. The evidence showed that a family friend hired Mr. Rosenblum for $50,000. Mr. Rosenblum in turn contracted for Mr. Green to look for mitigating evidence and to investigate social history for $10,000. While Mr. Green at one point said he asked Mr. Rosenblum to give him additional funds so he could conduct further investigation on issues regarding mitigation and DNA testing, it is not ineffective to consider cost in deciding what type of investigation to do and how to do it, so long as the resulting investigation is adequate. Mr. Worthington has failed to show that counsel did not adequately investigate using other means.

Defense counsel did have sufficient funds to hire two experts on the issue of diminished capacity. One, Dr. Miller, as noted, ultimately did not testify when counsel decided not to pursue a diminished capacity defense, but he was available. A second expert, Dr. Evans, did testify on behalf of the defense in the penalty phase. In these circumstances, counsel cannot be found to have failed to sufficiently investigate a diminished capacity defense in the guilt phase.

Rather, counsel instead made a strategic choice to advise Mr. Worthington to plead guilty and concentrate on his penalty phase defense. A reasonable strategy, even if it looks imperfect in hindsight, cannot provide the basis for an ineffective assistance of counsel claim. Cole , 152 S.W.3d at 270.

While Mr. Green initially stated that he also wanted money for a DNA expert, he said he then determined that it would not be necessary. Moreover, Mr. Worthington did not offer any evidence that, had a DNA expert been located, the expert would have been able to testify favorably to the defense. Absent a showing that further investigation would have provided such evidence, no prejudice could have resulted from the failure to further attempt to obtain a defense DNA expert. See State v. Davis , 814 S.W.3d 593, 603-604 (Mo. banc 1991) ("When a movant claims ineffective assistance of counsel for failure to locate and present expert witnesses, he must show that such experts existed at the time of trial, that they could have been located through reasonable investigation, and that the testimony of these witnesses would have benefited movant's defense").

In sum, it was not unreasonable for defense counsel to conclude that the risk of a death sentence was greater if Mr. Worthington went to trial than if he pled guilty and the penalty phase was tried to the judge. Mr. Worthington at the time agreed and made a knowing decision to plead guilty. Based on this evidence, the court did not err in concluding that it was reasonable to plead guilty rather than attempt a diminished capacity defense.

IV. PENALTY PHASE ERRORS

A. Failure to Investigate Social History.

Mr. Worthington also argues that his counsels' alleged failure to adequately investigate his social history made their penalty phase defense ineffective. He alleges that a more thorough investigation would have provided counsel with facts with which they could have countered inaccuracies in the testimony offered by the State's expert, Dr. Max Givon, in support of the latter's diagnosis of anti-social personality disorder.

In particular, he alleges that Dr. Givon testified that he exhibited severe conduct disorder before he was age 15 based on the belief that he had intentionally burned his friend, Butch Mackey, over 90 percent of his body. At his post-conviction hearing, Mr. Worthington presented the testimony of Butch's father and stepmother, Mr. and Mrs. Mackey, who testified that it was Butch's brother, Richey, who was burned, not by defendant but by two other boys. They said that they would have so testified at trial, but no one had contacted them.

Even assuming the Mackeys' testimony was accurate -- they made it clear that their knowledge of the incident was based on hearsay and counsel was unable to bring Butch or Richey to testify because they had their own problems with the law -- the failure to investigate this collateral issue did not constitute ineffective assistance.

Correcting the record as to who caused the burns was relevant only to the extent that the incident affected Dr. Givon's diagnosis of anti-social personality disorder and, in turn, to the extent that diagnosis affected the trial court's decision to impose the death penalty. Because extrinsic evidence cannot normally be used to impeach a non-party witness on a collateral issue, counsels' failure to undertake further investigation that might have revealed such extrinsic evidence was not prejudicial. State v. Dunson , 979 S.W.2d 237, 242 (Mo. App. W.D. 1998); Brewer v. Raynor Mfg. Co ., 23 SW.3d 915, 919 (Mo. App. S.D. 2000).

Even assuming that extrinsic evidence impeaching Dr. Givon's diagnosis would have been admissible had the burning incident been central to that diagnosis, there was no showing that this was the case. Defendant failed to call Dr. Givon at the post-conviction hearing or otherwise present evidence at that hearing that Dr. Givon relied on the burning incident in reaching his diagnosis. Dr. Givon's testimony at the trial indicates that the incident was not important to that diagnosis.

Dr. Givon testified that he principally based his diagnosis of anti-social personality disorder on Mr. Worthington's "pervasive pattern of disregard for and violation of the rights of others occurring since age 15 years " (emphasis added). He said this pattern included unlawfulness, deceit, impulsivity, irritability and aggression as indicated by fights and assaults, reckless disregard for safety, failure to sustain consistent work behavior, and lack of remorse.

Dr. Givon said that anti-social personality disorder also manifests itself as conduct disorder before age 15 and that Mr. Worthington showed such conduct disorder. But, he did not state that the burning incident was necessary to this conclusion. To the contrary, he stated that conduct disorder manifests itself as "aggression, fighting, crimes against property, stealing, behavior in school, fire setting, vandalism, things of that nature."

He then listed dozens of examples of conduct disorder that Mr. Worthington told him about. They began at age six or seven and continued into his teen years, of which the incident in which Mr. Worthington's friend was burned was only one, albeit remarkable, part:

He stated that he was suspended from school hundreds of times because of getting in trouble, being uncontrollable, too hyper. . . . He was involved in fights because people were messing with him. He had admitted setting his own home on fire twice as well as a garbage truck and he also said that he was always doing something destructive and made the remarkable statement that we burned our friend, Butch Mackey, over ninety percent of his body. I was eleven then. We were throwing gas on each other. He admitted to stealing and shoplifting when younger, beginning at age six or seven . . . . . . they were unable to control him in school. Therefore, he went to special behavior disorder school in Peoria. He said at age seven, eight, and nine he and his cousin broke into people's houses, stole alcohol and tomatoes. Age seven, eight, he burned a couple of houses . . . shot out windows with BB guns, . . . he was doing burglaries with his father, that's what he stated. He said he was very first arrested at age six or seven for shoplifting. . . .

As is evident, Dr. Givon was simply repeating what Mr. Worthington had told him, not vouching for its accuracy. Moreover, he did not state he particularly relied on the burning incident, nor that he believed that it showed intent to injure his friend. He simply reported that Mr. Worthington had told him that "we" burned our friend when "we" were throwing gas on each other. This description is more consistent with a reckless game than intentionally injuring another. Nothing suggests that, had the facts as to that incident been further explored, Dr. Givon's diagnosis would have changed. The failure to further investigate the burning incident was not ineffective.

B. Failure to Call Parents as Witnesses.

Mr. Worthington claims that his counsel was ineffective in not presenting mitigation evidence by calling his parents at trial to testify to their abuse and neglect of him and in not showing that many of the juvenile crimes attributed to him were in fact committed by his parents, who thought they could get away with blaming him for the crimes because he was a juvenile.

To prevail on a claim of ineffective assistance of counsel for failure to call a witness, the following must be shown: "1) Trial counsel knew or should have known of the existence of the witness; 2) the witness could be located through reasonable investigation; 3) the witness would testify, and 4) the witness's testimony would have produced a viable defense." Hutchison v. State, 150 S.W.3d 292, 304 (Mo. banc 2004).

Even then, "counsel's decision not to call a witness is presumptively a matter of trial strategy and will not support a claim of ineffective assistance of counsel unless the defendant clearly establishes otherwise." Id . As a matter of trial strategy, the determination to not call a witness is virtually unchallengeable. State v. Jones , 885 S.W.2d 57, 58 (Mo. App. W.D. 1994) . "If a potential witness's testimony would not unqualifiedly support a defendant, the failure to call such a witness does not constitute ineffective assistance." Id.

This case demonstrates the wisdom of these rules. For instance, Mr. Worthington asks this Court to find that his mother should have been called at trial and that counsel's failure to do so constituted ineffective assistance because she would have testified to her abuse of him and that she had committed many of the crimes for which he was blamed. Yet, although she was present at the hearing, counsel chose not to call her as a witness to support this contention. The court below could well have found that the decision was made not to call her because her testimony would not have supported Mr. Worthington's assertions that she would have aided in his defense at trial.

Indeed, that is the intendment of the testimony offered at the post-conviction hearing by one of Mr. Worthington's trial counsel. He testified that he chose not to call Mr. Worthington's mother at the trial because he was afraid that her testimony would undermine the defense's mitigation theory that Mr. Worthington had a horrible childhood because his mother continually tried to portray herself as a good mother rather than as the abusive woman Mr. Worthington claimed she had been.

He also believed that she was high on crack on the day she would have testified at trial. It was not unreasonable for counsel to make the strategic choice that it was better to use records of Mr. Worthington's history of abuse from Illinois than to call his mother at the trial.

Similarly, failure to call Mr. Worthington's father was not ineffective. Although counsel knew of the father's potential to be a witness, he was difficult to locate. Further, the evidence at the post-conviction hearing indicated that he had not had contact with his son since 1997 and they did not have much of a relationship.

In this situation, counsel decided that it made more sense to call Mr. Worthington's maternal aunt, Carol. She was able to testify to much of the same evidence that Mr. Worthington's parents would have offered. As noted, evidence of his abuse as a child also came in through records obtained from Illinois. Other evidence was also introduced concerning his childhood and social history.

Based on the evidence that was offered, the trial judge in fact found that Mr. Worthington was abused and neglected and was raised in a dysfunctional household. She nonetheless imposed the death penalty. The motion court did not err in holding that offering additional evidence of such abuse by calling Mr. Worthington's parents was not necessary nor was its absence prejudicial.

C. Failure to Disqualify Judges Schneider and Nichols.

Judge Nichols . Mr. Worthington alleges that counsel were ineffective because counsel did not check with him before waiving a potential conflict of interest on the part of Judge Nichols. The issue did not arise until Charlotte Peroti stated in the course of her testimony that her son was named Anthony Hansen. At that point, Judge Nichols informed counsel that when she heard that name she realized that she had been appointed guardian ad litem for Anthony some 10 to 12 years earlier, when he was about six years old and had received burns in a hot bath. She had not recognized Ms. Peroti until then. She asked whether either party had a concern about her continuing as judge in this circumstance.

Counsel for Mr. Worthington specifically testified that he had no concern and waived any conflict. Mr. Worthington now says that his counsel was ineffective in waiving this potential conflict since Mr. Worthington had identified Anthony Hansen as a co-participant in the crime and his mother was a witness for the State.

Trial counsel was not required to consult with his client before waiving the conflict. Defense counsel has wide discretion in determining what strategy to use in defending his or her client. "A client is bound by the decisions of counsel as to the management of the trial and as to stipulations which give effect to that strategy." State v. Hurt , 931 S.W.2d 213, 214 (Mo. App. W.D. 1996) . The accused has the right to make certain fundamental decisions, such as whether to plead guilty, waive a jury, testify or appeal; other decisions are for the attorney alone, even without consultation with the client. Id .

Waiving the disqualification of a judge is not one of these fundamental decisions that must be personally made by the accused. See State v. Baller, 949 S.W.2d 269, 274 (Mo. App. E.D. 1997).

Neither was the decision not to seek disqualification unreasonable. At the post-conviction hearing, Mr. Green testified that he and Mr. Rosenblum decided after consultation to waive the conflict as a matter of trial strategy. Mr. Green had conducted an extensive background investigation on Judge Nichols prior to advising Mr. Worthington to plead guilty.

Mr. Green further testified that he spoke with other attorneys in the community about Judge Nichols, that he determined that she was fair and a person of integrity, and that he had not found any negative information about her. Counsel were not ineffective in failing to object to Judge Nichols remaining on the case despite her prior representation of Anthony in an unrelated matter.

Perhaps aware of the discretion accorded defense counsel in a circumstance such as this, Mr. Worthington also alleges that Judge Nichols should have recused herself sua sponte when she became aware of her prior representation of Anthony because it created the appearance of impropriety.

There is a presumption that a judge acts with honesty and integrity and will not preside over a trial in which he or she cannot be impartial. Smulls v. State, 10 S.W.3d 497, 499 (Mo. banc 2000) . A judge should only be disqualified if a reasonable person would find an appearance of impropriety and question the impartiality of the court. Id . Whether a fact requires recusal depends on the factual context, which:

gives meaning to the kind of bias that requires disqualification of a judge. Specifically, a disqualifying bias or prejudice is one that has an extrajudicial source and results in an opinion on the merits on some basis other than what the judge learned from the judge's participation in a case. In cases requiring recusal, the common thread is either a fact from which prejudgment of some evidentiary issue in the case by the judge may be inferred or facts indicating the judge considered some evidence properly in the case for an illegitimate purpose.

Id. (internal quotation marks omitted).

Mr. Worthington has not met this standard here. This Court held on direct appeal that Mr. Worthington's claim that two friends, including Anthony Hansen, helped him with the burglary was inconsistent with the physical evidence and with later statements made by Mr. Worthington. There is also no evidence that Judge Nichols' representation gave her any extrajudicial source of information about the present case or caused her to prejudge any issue or to look favorably upon Ms. Peroti.

Finally, Mr. Worthington alleges that counsel was ineffective for not moving to disqualify Judge Nichols on the basis that she was biased in favor of the death penalty because members of the public called upon her, through the press and in letters, to impose the death penalty and because her opponent in a judicial election stated that a judge's view on the death penalty is a legitimate election issue. But, he cites to no cases holding that public pressure requires a judge to recuse solely on that basis.

Such an argument must be rejected. Were it otherwise, persons could improperly force the recusal of an impartial judge merely by creating a public controversy about the judge. In the absence of evidence showing that the publicity and calls for the death penalty affected Judge Nichols' impartiality, the mere existence of publicity did not require her recusal.

The record further reveals that Judge Nichols took reasonable measures to limit any perceived public pressure to impose the death penalty by delaying sentencing until the day after the election, an election that she lost. Mr. Worthington asks this Court to speculate that she might have imposed the death penalty because she wanted favorable publicity in the event she decided to seek public office at some point in the future, but such speculation has no foundation in the record.

Judge Schneider . Judge Schneider won Judge Nichols' seat in the election and presided over the post-conviction motion hearing. Mr. Worthington argues that Judge Schneider's campaign comments on the death penalty created the appearance that she had prejudged his case and counsel should have demanded her recusal. But the prosecutor, not Judge Schneider, made many of the statements Mr. Worthington refers to, and in any event the prosecutor lost his bid for reelection.

The only statements attributed to Judge Schneider are that "the death penalty and life in prison is an issue all citizens are concerned about . . . The judge can take the place of the jury, so it is important that public officials share their values and beliefs" and "it's very important for a judge to reflect the values of the community." These statements were about the death penalty in general, not Mr. Worthington. Judge Schneider had not been elected at the time and, thus, was not even the judge assigned to his case. These statements do not indicate that Judge Schneider would rule based on improper motive or not fairly consider the claims made by Mr. Worthington in his post-conviction motion.

D. Failure to Disclose Correct Name of Prosecution Witness.

On direct appeal, Mr. Worthington argued that the State failed to give the defense notice of its intent to call Charlotte Peroti to testify to instances of uncharged misconduct, specifically that he burglarized her apartment, tried to sexually assault her, and stole her car. This Court found that the issue was not properly preserved, since counsel allowed this testimony to come in without objection, but reviewed for plain error. This Court also found that the danger of undue weight being given to uncharged misconduct was greatly reduced because the case was tried to a judge rather than to a jury, 8 S.W.3d at 91. See also Carter , 955 S.W.2d at 560.

On direct appeal, this Court concluded, "[a]s to Ms. Peroti's testimony, the state had endorsed her two years before the penalty phase. Defense counsel was prepared to cross-examine her on the details of her failure to report the burglary and assault to police. Absent objection, there is no basis under plain error analysis for concluding that the admission of the evidence was prejudicial to Worthington." 8 S.W.3d at 91.

Mr. Worthington now argues that counsel were ineffective in failing to object to the lack of adequate notice of Ms. Peroti's testimony and in failing to seek a continuance to investigate the basis of Ms. Peroti's allegations. Because the quoted passage in the Court's opinion used the term "plain error", but then said that the error caused no prejudice rather than merely stating that it caused no manifest injustice, the State and Mr. Worthington disagree as to whether this Court's ruling on direct appeal precludes Mr. Worthington from now alleging these errors as a basis for post-conviction relief. See Deck, 68 S.W.3d at 427-428 (finding of no prejudice on appeal precludes finding of prejudice on post-conviction review, but in rare cases court may find an error that did not constitute manifest injustice nonetheless creates a reasonable probability that, but for the error, the result would have been different, entitling defendant to post-conviction relief).

This Court need not resolve that disagreement, for, assuming the issue may be raised as a basis for post-conviction relief, Mr. Worthington has not shown that there is a reasonable probability that the result of the penalty trial would have been different had counsel objected to the lack of notice of Ms. Peroti's testimony and sought a continuance.

As this Court noted on direct appeal, Ms. Peroti had been listed as a witness for two years under the name of Charlotte Kirn. Defendant endorsed her and all of the State's witnesses as his own. Even if counsel did not know until she got on the stand that Charlotte Peroti and Charlotte Kirn were the same person, Mr. Worthington had mentioned Ms. Peroti numerous times in his statement to police after his arrest and counsel knew all about the events to which she testified and cross-examined her effectively about them.

While counsel was not aware of Ms. Peroti's bad check conviction, he did establish her bias against Mr. Worthington, her attempt to get him arrested for drug trafficking, her belief that he was corrupting her son, and her dislike of him. There is no reasonable probability that the minor additional impeachment value of showing that she had a prior bad check conviction and that she may have exaggerated her role as a police informant affected the outcome of the case.

E. Failure to Object to Other Evidence of Non-Statutory Aggravators.

Mr. Worthington argues that counsel were also ineffective in failing to object to other evidence of non-statutory aggravators, such as his bad behavior in school and in jail, prior uncharged misconduct with friends, burglaries undertaken with his father, and other similar evidence. On direct appeal, admission of this evidence was found not to be plain error because most of it was stipulated to by the defense.

Defense counsel testified at the post-conviction motion that he wanted the court to see some of the records Mr. Worthington now argues should have been objected to, because they were relevant to mitigation in that they showed the dysfunctional family in which Mr. Worthington grew up and were evidence of prior abuse.

Furthermore, this was a court-tried case, and counsel testified that in deciding not to object he considered that the court would see the evidence anyway in ruling on the objections and much of the evidence would subsequently be before the court in the pre-sentence investigation and the court could consider it when making a decision on punishment. Thus, an objection, even if successful, would not have prevented the judge from being aware of the information.

Ineffective assistance of counsel is rarely found in cases of a failure to object. State v. Holloway , 877 S.W.2d 692, 697 (Mo. App. E.D. 1994) . It will only be deemed ineffective when the defendant has suffered a substantial deprivation of his right to a fair trial. Id . "In addition, counsel is not ineffective for failing to make nonmeritorious objections." Id.
It was not unreasonable for counsel to conclude that it was better not to object and instead to use the positive aspects of the information to support the claim that Mr. Worthington should not receive death. Counsel cannot be ineffective for making reasonable choices of trial strategy, even if in hindsight another strategy might have been more favorable. Cole , 152 S.W.3d at 270.

Further, given the large amount of evidence of prior crimes that was admissible and the evidence of prior arrests and other bad acts that had to be put before the judge to make some of Mr. Worthington's arguments, there is no reasonable probability that any error in admitting some additional prior bad act evidence was so prejudicial that the result of the proceeding would have been different if that evidence had not been admitted.

Mr. Worthington also alleges that counsel should have objected to the victim impact evidence introduced by the State because it was so excessive as to be unduly inflammatory. This Court rejected a nearly identical claim on direct appeal. Worthington, 8 S.W.3d at 89 .

While this Court reviewed that claim under a plain error standard, it nonetheless determined that the State is allowed to do more than present a brief glimpse of the victim's life, Id. at 90 , and held that the amount of victim impact evidence admitted was neither excessive nor unduly inflammatory merely because the witnesses were permitted to read prepared statements that indicated they wanted a message to be sent and that justice be served. Further, this Court conducted an independent review of the proportionality of the sentence and found it was not the result of passion, prejudice or other arbitrary factors. Id. at 89-91 .

This Court reaffirms those conclusions here. It is clear that some victim impact evidence was admissible. State v. Storey , 40 S.W.3d 898, 909 (Mo. banc 2001) (victim impact evidence is admissible under the United States and Missouri constitutions and violates them only "if it is so unduly prejudicial that it renders the trial fundamentally unfair").

Assuming, without deciding, that an excessive amount of victim impact evidence was offered, this Court cannot say there is a reasonable probability that the result of the proceeding would have been different if a lesser amount of victim impact evidence had been admitted. Deck, 68 S.W.3d at 429 . Much of the evidence was similar in nature. Any prejudicial effect was greatly limited by the fact that the case was tried to the court, rather than a jury, because judges are "presumed not to consider improper evidence when sentencing a defendant." Roll, 942 S.W.2d at 378.

V. INABILITY OF STATE TO PERFORM CONSTUTIONAL EXECUTIONS

Finally, Mr. Worthington argues that execution by lethal injection, and its related procedures, causes death by a process that involves lingering death, mutilation, and unnecessary and wanton infliction of pain in violation of the Eighth and Fourteenth Amendments to the United States Constitution. In support of his claim, he cites the case of Emmitt Foster, who was executed by the State in 1995. Mr. Worthington alleges that Foster's execution took 30 minutes to carry out and that Foster convulsed during the execution. Further, Mr. Worthington cites to nine other lethal injection executions from other states that involved similar incidents.

For the reasons set out in Morrow v. State, 21 S.W.3d 819, 828 (Mo. banc 2000) , the argument that lethal injection is unconstitutional per se because if improperly performed it may result in unnecessary and wanton infliction of pain and so constitute cruel and unusual punishment is rejected. (FN3)

VI. CONCLUSION

For the reasons set out above, the judgment is affirmed.

All concur.

*****

Footnotes:

FN1. Worthington, 8 S.W.3d at 86-87.

FN2. His allegations that this failure affected the penalty phase trial are discussed infra.

FN3. As it is unknown what method, if any, of lethal injection may be utilized by the State of Missouri at such future time, if any, as Mr. Worthington's right to seek relief in state and federal courts is concluded and his execution date and method are set, it is premature for this Court to consider whether a particular method of lethal injection violates the Eighth Amendment because it causes lingering, conscious infliction of unnecessary pain.

Separate Opinion:
None
 

Worthington v. Roper, 631 F.3d 487 (8th Cir. Mo. 2011). (Federal Habeas)

Background: Following affirmance of his state convictions for first-degree murder, first-degree burglary, and forcible rape, for which he was sentenced to death, 8 S.W.3d 83, and denial of his state habeas claims, 166 S.W.3d 566, petitioner sought federal habeas relief. The United States District Court for the Eastern District of Missouri, Charles A. Shaw, J., 619 F.Supp.2d 661, granted petition in part. Warden appealed, and certificate of appealability (COA) was granted to petitioner.

Holdings: The Court of Appeals, Gruender, Circuit Judge, held that: (1) postconviction trial court adjudicated merits of petitioner's claim, such that trial court's decision was entitled to deference; (2) when a state appellate court affirms a lower court decision without reasoning, the Court of Appeals “looks through” the silent opinion; (3) state court's determination that counsel conducted reasonable investigation into psychological mitigating evidence during penalty phase of capital murder case did not constitute unreasonable application of clearly established federal law; (4) state court's decision that counsel reasonably decided against further investigating and presenting expert psychological evidence at penalty phase of capital murder case did not constitute unreasonable application of clearly established federal law; (5) state court reasonably concluded that counsel's decision not to present testimony of petitioner's parents during penalty phase of capital murder case was not constitutionally ineffective; and (6) habeas relief was not warranted as to state court decision that petitioner suffered no prejudice as result of counsel's failure to object to prosecution's failure to give adequate notice that witness would testify. Affirmed in part, reversed in part, and remanded.

GRUENDER, Circuit Judge.

The Circuit Court of St. Charles County, Missouri, sentenced Michael Worthington to death after he pled guilty to one count of first-degree murder, one count of first-degree burglary, and one count of forcible rape. Following unsuccessful state appeals and postconviction proceedings, Worthington filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing seven grounds for relief. The district court granted his petition on one ground, from which Warden Don Roper now appeals. Worthington, in turn, cross-appeals from the district court's rejection of two other grounds, for which the district court issued a certificate of appealability. For the reasons that follow, we reverse the district court's grant of Worthington's petition and affirm the district court's denial with respect to his two additional claims.

I. BACKGROUND

In 1995, Worthington was charged with burglary, and the rape and murder of his neighbor, Melinda Griffin. The following facts are drawn from the Missouri Supreme Court's description of the incident in its opinion affirming Worthington's sentence. See State v. Worthington, 8 S.W.3d 83 (Mo. banc 1999). On the night of September 29, 1995, Worthington broke into Griffin's St. Charles County condominium. He used a razor blade to cut through the screen in the kitchen window and confronted Griffin in her bedroom. After strangling her into unconsciousness, Worthington raped Griffin with such force that he bruised the inside of her vagina, tore both labia minora, and made a deep tear between her vagina and anus. Griffin regained consciousness during the rape and attempted to fight Worthington, but he beat her and strangled her again, this time killing her. He then stole her jewelry, credit cards, mobile phone, keys, and car.

A neighbor discovered Griffin's remains on October 1. Her naked body was found at the foot of her bed, with a lace stocking draped across it. DNA testing later identified Worthington's semen on Griffin's body. When police officers located Worthington that evening, he was wearing a fanny pack containing Griffin's jewelry and keys. After he was arrested, Worthington initially told the investigating officers that he had been high and intoxicated from using alcohol and various other drugs for the previous four days. Upon being presented with the evidence against him, he confessed to killing Griffin but said that he could not remember the details of the incident. The State charged Worthington with one count of first-degree murder, one count of first-degree burglary, and one count of forcible rape. He initially retained attorney Joel Eisenstein to represent him, but Eisenstein later withdrew. Worthington then retained attorneys N. Scott Rosenblum, Joseph L. Green, and Bradford Kessler,FN1 all experienced capital defense attorneys. On August 28, 1998, Worthington pled guilty to all three charges without a plea agreement. He waived a jury for sentencing. FN1. Kessler withdrew from representation upon the dissolution of his partnership with Rosenblum.

The four-day sentencing hearing commenced on September 14, 1998, at which time the State presented victim impact statements, forensic evidence, and evidence of Worthington's lengthy criminal history. A detective with the Peoria, Illinois Police Department testified that Worthington had been arrested fifteen times—often in connection with burglaries—and had been listed as a “suspect or criminal” in connection with another fifteen cases. At least three of the incidents involved Worthington breaking into his grandmother's house. In addition, the police records indicated that Worthington twice had assaulted his ailing grandfather, first by grabbing him and threatening his life and the second time by firing a gun at him. The State also presented evidence that Worthington repeatedly had been convicted for burglary as a juvenile and twice had been institutionalized in juvenile correctional facilities. He also was imprisoned twice by the Illinois Department of Corrections. Further, the State presented evidence that Worthington engaged in a pattern of disruptive and assaultive behavior while incarcerated after Griffin's murder, including fighting with inmates, threatening and attempting to assault correctional officers, and hiding contraband—including a razor blade—in his cell.

The State also called Dr. Max Givon, a psychologist. Dr. Givon had examined Worthington in 1996, pursuant to the defense's motion for a pretrial mental evaluation. See Mo.Rev.Stat. §§ 552.015–.030. In preparation for his report, Dr. Givon interviewed Worthington twice, administered an MMPI–2 psychological test, and reviewed an extensive collection of records chronicling Worthington's background. He concluded that Worthington did not have a mental disease or defect, but instead that he had antisocial personality disorder, was malingering and cocaine-dependent, and abused alcohol.

In preparation for the penalty phase, attorney Green had two brief conversations with Worthington's mother and contacted Carol Tegard, Worthington's maternal aunt, who later would testify at the penalty hearing. Green did not obtain records other than those compiled during Dr. Givon's 1996 evaluation. Based on Dr. Givon's unfavorable conclusions regarding Worthington's mental health, Green did not consider further pursuing an expert psychological mitigation strategy at the penalty phase. Attorney Rosenblum, however, retained Dr. Kevin Miller, a psychiatrist, in early August 1998, initially for the purpose of exploring a diminished capacity defense at the guilt phase. He provided Dr. Miller with Dr. Givon's report, along with police investigative reports and partial records of Worthington's 10–day psychiatric hospitalization in 1994. Additionally, Rosenblum invited Dr. Miller to request further materials from Dr. Givon directly, and Dr. Miller met with Worthington twice. Dr. Miller's conclusions corroborated Dr. Givon's unfavorable diagnoses of antisocial personality disorder, cocaine dependance, and alcohol abuse. Dr. Miller also concluded that there was evidence that Worthington was suffering from attention-deficit/hyperactivity disorder, post-traumatic stress disorder, major depressive disorder (in remission), and that he had a history of cocaine-induced psychosis. However, Dr. Miller indicated that there was insufficient evidence to draw a definite conclusion on bipolar disorder, dissociative disorder, malingering, and complex partial seizures.

As a result of this second evaluation, Rosenblum decided against raising a psychological mitigation argument at the penalty phase. Instead, the defense team focused on Worthington's abusive background. Counsel presented the testimony of Carol Tegard, who recounted Worthington's abuse and neglect as a child. Counsel also presented numerous documents detailing Worthington's dysfunctional background, including his mother's chronic alcoholism, his father's heroin addiction, and physical abuse and neglect by his family and babysitter. The presentence report (“PSR”), prepared by the Missouri Board of Probation and Parole for the sentencing court, confirmed these accounts and described incidents where Worthington was the victim of sexual abuse. In addition, counsel called three inmates and the records custodian from the St. Charles County Jail in an effort to undermine evidence pertaining to Worthington's misconduct while incarcerated. Finally, Dr. Roswald Evans, a psychiatric pharmacist, testified that Worthington was intoxicated at the time of the crime and that his intoxication “rendered him ... incapable of making a decision about his behavior.”

At the conclusion of the penalty phase, the sentencing court announced that it found as non-statutory mitigating circumstances that Worthington was raised in a dysfunctional family, was abused and neglected as a child, and was a long-term drug abuser. The court also found two statutory aggravating circumstances beyond a reasonable doubt: (1) that Worthington committed the murder while engaged in the perpetration of forcible rape and first-degree burglary, and (2) that Worthington committed the murder for the purpose of receiving money or things of monetary value from the victim. The court then sentenced Worthington to death on the murder count and sentenced him to terms of thirty years and life imprisonment for the burglary and the rape, respectively. The Missouri Supreme Court affirmed the sentence of death. Worthington, 8 S.W.3d at 94.

Worthington then filed a pro se motion for postconviction relief under Missouri Supreme Court Rule 24.035(j). The postconviction trial court subsequently appointed counsel, who filed an amended motion. Among other claims, Worthington asserted that trial counsel was constitutionally ineffective for failing to investigate his background adequately and to provide a complete social history to expert witnesses. Had experts further examined his background and his family's mental-health history, Worthington alleged, they would have been able to present testimony that he did indeed suffer from mental disease or defect. In support of his argument, Worthington presented three expert witnesses—Drs. Jonathan Pincus, Dennis Cowan, and Robert Smith—who testified that Worthington suffered from a number of mental disorders, including Tourette's Syndrome, obsessive-compulsive disorder, attention-deficit/hyperactivity disorder, post-traumatic stress disorder, and bipolar disorder. Worthington also argued that trial counsel was constitutionally ineffective for failing to investigate and present additional mitigation evidence through his parents' testimony, and that counsel was constitutionally ineffective for failing to investigate and object to one of the State's penalty phase witnesses, Charlotte Peroti. The trial court denied Worthington's motion for postconviction relief, Worthington v. State, No. 00–12558, 2003 WL 25279797 (Mo.Cir.Ct.St.Charles Cnty. filed Dec. 5, 2003), and the Missouri Supreme Court affirmed, Worthington v. State, 166 S.W.3d 566 (Mo. banc 2005).

In 2005, Worthington filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Missouri, pursuant to 28 U.S.C. § 2254. His petition sought review of seven claims, including the three discussed above. The district court held that the state courts had not adjudicated the merits of Worthington's claim that trial counsel had failed to adequately investigate and pursue psychological mitigation evidence. Worthington v. Roper, 619 F.Supp.2d 661 (E.D.Mo.2009). Applying de novo review, the district court granted habeas relief on that claim and ordered that Worthington either be sentenced to life in prison without the possibility of parole or be given a new penalty phase hearing. Although it denied relief on the remaining claims, the court granted a certificate of appealability with respect to (1) whether counsel was constitutionally deficient for failing to investigate and present additional mitigation evidence through the testimony of Worthington's parents, and (2) whether counsel was constitutionally deficient for failing to investigate and object to Charlotte Peroti's testimony. For the reasons discussed below, we affirm the district court's denial of Worthington's two ineffective-assistance claims, and we reverse its grant of relief on the ineffective-assistance claim relating to psychological mitigation evidence.

II. DISCUSSION

A. Warden Roper's Appeal

Warden Roper appeals the district court's ruling that Worthington's attorneys were ineffective during the penalty phase because they failed to investigate adequately his social history and medical history, including his family's background, and pursue a psychological mitigation strategy based on expert testimony. We review de novo the district court's legal conclusions, Armstrong v. Kemna, 365 F.3d 622, 626 (8th Cir.2004), “including its application of the standards of review imposed by AEDPA,” Chadwick v. Janecka, 312 F.3d 597, 605 n. 6 (3d Cir.2002). The district court's findings of fact are reviewed for clear error. Armstrong, 365 F.3d at 626.

Under 28 U.S.C. § 2254 as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a decision by a state court “with respect to any claim that was adjudicated on the merits in State court proceedings” is entitled to deference by the federal courts. “[W]hen a state prisoner files a petition for writ of habeas corpus in federal court we are directed to undertake only a limited and deferential review of underlying state court decisions.” Collier v. Norris, 485 F.3d 415, 421 (8th Cir.2007) (quoting Morales v. Ault, 476 F.3d 545, 549 (8th Cir.2007)). AEDPA instructs that habeas relief cannot be granted “unless the adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court decision is “contrary to” clearly established federal law if it either “arrives at a conclusion opposite that reached by [the Supreme] Court on a question of law” or “decides a case differently than th[e] [Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court “unreasonably applies” Supreme Court precedent if it “identifies the correct governing legal principle from th[e] [Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413, 120 S.Ct. 1495. “A federal court may not issue the writ simply because it ‘concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.’ ” Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir.2005) (quoting Williams, 529 U.S. at 411, 120 S.Ct. 1495).

The language of § 2254(d) plainly limits the applicability of AEDPA's deferential standard to claims that have been “adjudicated on the merits” in state court. Brown v. Luebbers, 371 F.3d 458, 460 (8th Cir.2004) (en banc). Absent state court adjudication, a federal habeas court will apply de novo review. Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (citing Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). As a threshold matter, then, we must determine whether the Missouri courts adjudicated the merits of Worthington's claim that counsel was constitutionally ineffective for failing to investigate adequately his background and present effective psychological mitigation expert testimony at the penalty phase. Neither party argues that the Missouri Supreme Court adjudicated the claim's merits.FN2 Rather, Warden Roper contends that the district court should have “looked through” the silent supreme court opinion and applied AEDPA's deferential review to the postconviction trial court decision. See Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Mark v. Ault, 498 F.3d 775 (8th Cir.2007). This contention requires two related inquiries. First, did the postconviction trial court adjudicate the merits of Worthington's claim? Second, if the postconviction trial court did adjudicate the merits, should a federal habeas court “look through” the Missouri Supreme Court's decision and evaluate the postconviction trial court's reasoned decision under the deferential AEDPA standard?

FN2. Because the issue was not contested, we will assume, without deciding, that the Missouri Supreme Court did not adjudicate the merits of the claim for purposes of AEDPA review. We observe, however, that the Missouri Supreme Court mentioned the claim at issue early in its opinion but never discussed it thereafter, 166 S.W.3d at 574 n. 2, and that the court rejected Worthington's appeal in its entirety. It is well established in this circuit that a state court decision need not include reasoning as a prerequisite to applying AEDPA review, see James v. Bowersox, 187 F.3d 866, 869 (8th Cir.1999); see also Weaver v. Bowersox, 438 F.3d 832, 838 (8th Cir.2006) (“[A]lthough the [omitted] claims were not specifically discussed, the Missouri Supreme Court did address the claims in a conclusory fashion that is sufficient to bring the case under AEDPA.”), and we note that Harrington v. Richter—currently pending before the Supreme Court—may shed further light on the contours of this issue, No. 09–587, 2010 WL 3974115 (U.S. argued Oct. 12, 2010) (raising issue of whether AEDPA deference applies to a state court's summary disposition of a Sixth Amendment claim).

As to the first inquiry, we conclude that Worthington's claim was indeed adjudicated on the merits by the postconviction trial court. That court correctly recognized Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as requiring proof that counsel's performance was objectively deficient and that the defendant was prejudiced thereby. Worthington, No. 00–12558, slip op. at 7–12. The court also determined that “[t]rial counsel's pre-trial conduct in having [Worthington] examined by two mental health professionals and consulting with and calling as a witness ... a doctor of pharmacy, was a reasonable and thorough investigation.” Id. at 10. Concluding that Worthington had failed to satisfy either Strickland prong, the court stated: [T]rial counsel did conduct a reasonable investigation and made a reasonable decision that made further investigations unnecessary. The court further finds that [Worthington] has failed to demonstrate that his trial counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under substantially similar circumstances and that he was thereby prejudiced. Id. at 11. Despite the postconviction trial court's treatment of his ineffective-assistance claim, Worthington now argues that it did not adjudicate this portion of his claim because it did not adequately scrutinize his allegation that counsel performed ineffectively at the penalty phase by failing to supply experts with comprehensive background information. This argument fails to persuade, however, because a review of the postconviction trial court's decision leaves no question that it rejected Worthington's ineffective-assistance claim in toto.FN3 “AEDPA's requirement that a petitioner's claim be adjudicated on the merits by a state court is not an entitlement to a well-articulated or even a correct decision by a state court.” Weaver, 438 F.3d at 839 (quoting Muth v. Frank, 412 F.3d 808, 815 (7th Cir.2005)). Accordingly, the postconviction trial court's discussion of counsel's performance—combined with its express determination that the ineffective-assistance claim as a whole lacked merit—plainly suffices as an adjudication on the merits under AEDPA.

FN3. In his primary ineffective-assistance claim presented to the postconviction trial court, Worthington intertwined allegations that counsel failed to investigate and present sufficient mitigation testimony through additional witnesses at the penalty phase with allegations that counsel failed to investigate and present sufficient background information to psychological experts in the context of both the guilt phase and the penalty phase. See infra n. 12. We address Worthington's argument that counsel failed to call additional mitigation witnesses in Section II.B, infra.

As to the second inquiry, when a state appellate court affirms a lower court decision without reasoning, we “look through” the silent opinion and apply AEDPA review to the “last reasoned decision” of the state courts. See Winfield v. Roper, 460 F.3d 1026, 1038 (8th Cir.2006) (citing Ylst, 501 U.S. at 803–04, 111 S.Ct. 2590); cf. Mark, 498 F.3d at 783 (“looking through” to Iowa Court of Appeals decision where Iowa Supreme Court denied discretionary review) (citing Ylst, 501 U.S. at 803–04, 111 S.Ct. 2590). This is so regardless of whether the affirmance was reasoned as to some issues or was a summary denial of all claims. See Winfield, 460 F.3d at 1038 (citing Steward v. Cain, 259 F.3d 374, 377 (5th Cir.2001)); see also Bond v. Beard, 539 F.3d 256, 289 (3d Cir.2008) (“[W]e should review the [postconviction trial court] decision since it either represents the state courts' last reasoned opinion on this topic or has not been supplemented in a meaningful way by the higher state court.”). Worthington urges this court to limit the “look through” doctrine to its original application by the Supreme Court in Ylst—determining whether an independent state ground procedurally bars a petitioner from seeking federal habeas review. However, Worthington's narrow reading is foreclosed by our decision in Mark, where we used the AEDPA standard to review the merits of an intermediate state court decision. 498 F.3d at 783 (citing Ylst, 501 U.S. at 803–04, 111 S.Ct. 2590). Indeed, other courts likewise have employed AEDPA to review the merits of lower court decisions in the absence of a reasoned affirmance by a state's highest court. See Malone v. Clarke, 536 F.3d 54, 63 n. 6 (1st Cir.2008) (“The highest state court ... summarily denied Malone's habeas claim, therefore, we ‘look through’ to ‘the last reasoned decision,’ which is the decision of the Massachusetts Appeals Court.”) (citing Gunter v. Maloney, 291 F.3d 74, 80 (1st Cir.2002)); Bond, 539 F.3d at 289 (reviewing the state trial court decision where the state supreme court decision “did not add further reasoning than that provided by the [postconviction trial court]”); Joseph v. Coyle, 469 F.3d 441, 450 (6th Cir.2006) (“[T]he decision we review is that of the last state court to issue a reasoned opinion on the issue.”) (quotation marks omitted); Franklin v. Johnson, 290 F.3d 1223, 1233 n. 3 (9th Cir.2002) (where state appellate courts denied habeas petition without comment, a federal habeas court “must look to the last reasoned decision of the state court as the basis of the state court's judgment”).

Applying the deferential AEDPA standard of review to his claim that counsel performed ineffectively by failing to investigate and pursue mitigating psychological evidence, we now consider whether Worthington is entitled to federal habeas relief.FN4 Because the postconviction trial court correctly identified Strickland as the controlling authority for ineffective-assistance claims, we address whether the state court unreasonably applied that precedent and whether the state court unreasonably determined the facts in light of the evidence presented. Bucklew v. Luebbers, 436 F.3d 1010, 1016 (8th Cir.2006); 28 U.S.C. § 2254(d). As discussed above, to prove ineffective assistance of counsel, Worthington had to demonstrate both that counsel's performance was objectively deficient and that he was prejudiced by the deficient performance. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Failure to establish either Strickland prong is fatal to an ineffective-assistance claim. Id. at 697, 104 S.Ct. 2052. FN4. Because the parties have briefed Worthington's ineffective-assistance claim under the AEDPA standard, we need not remand the claim to the district court. See Scarberry v. Iowa, 430 F.3d 956, 958–59 (8th Cir.2005).

The first prong of Strickland requires a showing that counsel's performance fell below an objective standard of reasonableness. Id. at 687–88, 104 S.Ct. 2052. “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 691, 104 S.Ct. 2052. Although in assessing the reasonableness of counsel's performance the Supreme Court has looked to sources such as the ABA Capital Sentencing Guidelines, see, e.g., Rompilla, 545 U.S. at 387, 125 S.Ct. 2456; Wiggins, 539 U.S. at 524, 123 S.Ct. 2527, “[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant,” Strickland, 466 U.S. at 688–89, 104 S.Ct. 2052. The Court also has emphasized that “hindsight is discounted by pegging adequacy to ‘counsel's perspective at the time’ investigative decisions are made, and by giving a ‘heavy measure of deference to counsel's judgment.’ ” Rompilla, 545 U.S. at 381, 125 S.Ct. 2456 (quoting Strickland, 466 U.S. at 689, 691, 104 S.Ct. 2052). As a result, review of the state court's determination that Worthington has not proved an ineffective-assistance claim is “twice deferential: we apply a highly deferential review to the state court decision; the state court, in turn, is highly deferential to the judgments of trial counsel.” Link v. Luebbers, 469 F.3d 1197, 1202 (8th Cir.2006) (quoting Nooner v. Norris, 402 F.3d 801, 808 (8th Cir.2005)).

The second prong of Strickland—prejudice—requires a showing of a reasonable probability that, but for counsel's ineffectiveness, the result of the penalty phase would have been more favorable to the defense. Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Merely showing a conceivable effect is not enough; a reasonable probability is one “sufficient to undermine confidence in the outcome.” Wiggins, 539 U.S. at 534, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 692, 104 S.Ct. 2052). Worthington relies heavily on three Supreme Court cases decided after Strickland that have further defined the contours of counsel's duty to investigate at the penalty phase: Williams v. Taylor, Wiggins v. Smith, and Rompilla v. Beard.FN5 In Williams, the Court ordered habeas relief under AEDPA, concluding that counsel's performance fell well outside the bounds of effective assistance. 529 U.S. at 398–99, 120 S.Ct. 1495. Williams's counsel “did not begin to prepare for th[e] [penalty] phase ... until a week before the trial,” id. at 395, 120 S.Ct. 1495, and failed to introduce any evidence of Williams's exemplary prison behavior, his role in helping to break up a prison drug ring, or his borderline mental retardation, id. at 396, 120 S.Ct. 1495. Furthermore, counsel also neglected to uncover extensive records describing Williams's “nightmarish” childhood, “not because of any strategic calculation but because they incorrectly thought that state law barred access to such records.” Id. at 395, 120 S.Ct. 1495.

FN5. The Supreme Court also has addressed counsel's duty to investigate in two more recent cases, Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (per curiam), and Bobby v. Van Hook, 558 U.S. 4, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009) (per curiam). Under AEDPA's standard of review, however, our analysis is limited to “the law as it was ‘clearly established’ by [Supreme Court] precedents at the time of the state court's decision.” Wiggins, 539 U.S. at 520, 123 S.Ct. 2527. In any event, Porter and Van Hook have not altered the scope of Strickland. The Court in Porter concluded that defense counsel's representation had been constitutionally deficient where counsel had “failed to uncover and present any evidence of Porter's mental health or mental impairment, his family background, or his military service.” 130 S.Ct. at 453. In Van Hook, the Court examined petitioner's claim under the pre-AEDPA standard, 130 S.Ct. at 16, and denied relief where petitioner's trial counsel had communicated with his parents, aunt, and family friend; consulted with two expert witnesses; and contacted the Veterans Administration in an effort to obtain petitioner's medical records, id. at 18. Rejecting petitioner's argument that trial counsel should have further investigated his background, the Court concluded that “given all the evidence they unearthed from those closest to Van Hook's upbringing and the experts who reviewed his history, it was not unreasonable for his counsel not to identify and interview every other living family member or every therapist who once treated his parents.” Id. at 19.

The Court in Wiggins likewise held that counsel's decision to limit the scope of investigation—and their resulting failure to introduce any of Wiggins's personal history as mitigation evidence—was constitutionally deficient. 539 U.S. at 523, 123 S.Ct. 2527. The state court decision to the contrary, the Court held, “reflected an unreasonable application of Strickland.” Id. at 528, 123 S.Ct. 2527. Counsel had abandoned any form of mitigation argument based on personal history after having acquired only the presentence investigation report—which included a one-page account of Wiggins's background—and city social service records documenting his placements in the state foster care system. Id. at 523, 123 S.Ct. 2527. The Court determined that counsel's failure to expand their search “after having acquired only rudimentary knowledge of [Wiggins's] history from a narrow set of sources” fell below an objective standard of reasonableness. Id. at 524, 123 S.Ct. 2527 (citing ABA Guidelines). While “ Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing,” id. at 533, 123 S.Ct. 2527, the Court concluded that counsel nonetheless had been ineffective. “ ‘[S]trategic choices made after less than complete investigation are reasonable’ only to the extent that ‘reasonable professional judgments support the limitations on investigation.’ ” Id. (quoting Strickland, 466 U.S. at 690–91, 104 S.Ct. 2052).

Finally, in Rompilla, the petitioner argued that trial counsel had been constitutionally ineffective at the penalty phase for failing to investigate his school records, juvenile records, evidence of alcohol dependence, and—most significantly—the court file of his previous conviction. 545 U.S. at 382–83, 125 S.Ct. 2456. With regard to the school and juvenile records and the alcoholism evidence, the Court acknowledged that “there is room for debate about trial counsel's obligation to follow at least some of those potential lines of enquiry.” Id. at 383, 125 S.Ct. 2456. “Reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste.” Id. (citing Wiggins, 539 U.S. at 525, 123 S.Ct. 2527; Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987); Strickland, 466 U.S. at 699, 104 S.Ct. 2052). However, the Court determined that counsel had performed deficiently in failing to examine the easily accessible court file on Rompilla's prior conviction, id., because they were fully aware of the prosecution's plan to introduce evidence of the conviction at sentencing, id. at 389–90, 125 S.Ct. 2456. Entries in the file, the Court observed, “would have destroyed the benign conception of Rompilla's upbringing and mental capacity” that Rompilla's trial counsel and mental health experts had entertained. Id. at 391, 125 S.Ct. 2456.

Here, Worthington argues that trial counsel was ineffective for failing to investigate adequately his background and pursue a psychological mitigation strategy based on expert testimony. Specifically, Worthington faults trial counsel's failure to interview family members and acquaintances, to procure his records from the Illinois Department of Corrections, and to obtain the psychiatric and medical records of Worthington's mother, father, uncle, grandmother, and grandfather. This additional history, he alleges, would have supported mitigating expert testimony regarding his mental health. The state court concluded that trial counsel made a reasonable decision not to pursue the mental-health strategy further and thus acted reasonably in not pursuing further psychological evidence. Worthington, No. 00–12558, slip op. at 10, 11.

As we have noted, “counsel has a duty to conduct a reasonable investigation or to make a reasonable determination that an investigation is unnecessary.” Link, 469 F.3d at 1203 (citing Sidebottom v. Delo, 46 F.3d 744, 752 (8th Cir.1995)). “Ordinarily, we consider strategic decisions to be virtually unchallengeable unless they are based on deficient investigation.” Id. at 1204. Therefore, our analysis of Worthington's claim entails two inquiries: whether the state court reasonably decided that counsel had conducted an adequate investigation, and whether the state court reasonably decided that counsel's resulting decision to refrain from further investigating and presenting psychological mitigation evidence was reasonable.

Worthington's claim rests heavily on his contention that attorney Joseph Green performed an unreasonably cursory investigation before deciding against pursuing further psychological evidence. In particular, Worthington asserts, Green's testimony demonstrates that he had no strategic reason not to further investigate Worthington's background and pursue further psychological evaluations. Green had been “subcontracted” by attorney Scott Rosenblum to handle much of Worthington's penalty phase. During his post-conviction deposition, Green acknowledged that he had not hired a mitigation specialist even though mitigation specialists usually are employed in death penalty cases. He testified, though, that the records compiled by Dr. Givon during his 1996 examination (discussed further below) “were consistent with the type of records that a mitigation specialist would have obtained.” Green spoke to Worthington's mother only briefly, but he found that she was preoccupied with portraying herself as a good mother. He also contacted Carol Tegard, Worthington's aunt, who later testified as a mitigation witness during the penalty phase. Despite having the names of other family members and acquaintances, Green did not contact them or travel to Peoria, Illinois, Worthington's home town.FN6 Green also did not procure records other than those acquired by Dr. Givon.

FN6. At his post-conviction deposition, Green testified that “a boatload of reasons” informed his decision not to travel to Peoria, including the fact that “time and expense was not a luxury I had, keeping up my own private practice and what I was getting paid ... for on this case.”

While the extent of Green's preparation for the penalty phase was not ideal, in assessing the reasonableness of counsel's performance, we cannot disregard the efforts of attorney Rosenblum. See Bucklew, 436 F.3d at 1019 (“It is not deficient performance for a team of attorneys to divide among them the workload of a case in a rational and efficient manner.”). The record reflects that Rosenblum assumed the role of undermining Dr. Givon's testimony that Worthington was a malingerer and had only antisocial personality disorder, not a mental disease or defect. Although, based on the record, it is impossible to determine the level of Green's involvement in the relevant decision-making,FN7 it is clear that Rosenblum investigated the possibility of a psychological mitigation argument at the penalty phase and made a reasoned strategic determination not to pursue such an approach. Rosenblum's testimony establishes that he retained Dr. Miller, a psychiatrist, in early August 1998, initially for the purpose of exploring the feasibility of a diminished-capacity defense at trial. Dr. Miller met with Worthington twice, on August 6 and August 19. He also was provided with police investigative reports and partial records of Worthington's 10–day psychiatric hospitalization at the Methodist Medical Center of Illinois in 1994, along with Dr. Givon's 1996 report. Dr. Givon also had interviewed Worthington twice and had administered an MMPI–2 psychological test. As noted above, Dr. Givon's report diagnosed antisocial personality disorder, malingering, cocaine-dependence, and alcohol abuse. In addition, the report summarized a substantial collection of records regarding Worthington's background and medical history, including a school psychological evaluation performed at age fourteen; a 1989 psychological evaluation; records from the Illinois Department of Corrections, Youth Division; a 1994 report from White Oak Knolls Rehabilitation Center; records from Worthington's hospitalization at the Methodist Medical Center; and notes from two 1995 counseling sessions. Rosenblum did not provide Dr. Miller with every record on which Dr. Givon's report was based, but he invited Dr. Miller to request the materials from Dr. Givon directly. In his postconviction deposition, Rosenblum explained that he adopted a similar approach in previous cases because Dr. Givon “provide[d] his records generally pretty easily without much of a problem.” Dr. Miller never requested further records from Rosenblum. Nor is there any indication that he contacted Dr. Givon.

FN7. Green testified that he was unaware that Rosenblum had retained Dr. Miller until well after the sentencing hearing. Green also indicated, though, that he was not responsible for the “logistics of hiring experts.” Rosenblum testified, however, that “I know in my mind I discussed with Joe [Green] not only the fact I was talking to Dr. Miller but that I talked to him about his findings.” The district court adopted Green's recollection without acknowledging Rosenblum's competing testimony. See Worthington, 619 F.Supp.2d at 684 n. 11.

This case is not one “where the record is clear that no reasonable attorney ... would have failed to pursue further evidence.” Link, 469 F.3d at 1203. Indeed, we have repeatedly observed that “[w]here counsel has obtained the assistance of a qualified expert on the issue of the defendant's sanity and nothing has happened that should have alerted counsel to any reason why the expert's advice was inadequate, counsel has no obligation to shop for a better opinion.” Marcrum v. Luebbers, 509 F.3d 489, 511 (8th Cir.2007) (citing Sidebottom, 46 F.3d at 753); see also Winfield, 460 F.3d at 1041. Cases in which the Supreme Court has held counsel's failure to investigate to be constitutionally ineffective involved a level of deficiency absent from the present case. Counsel in Williams neglected to prepare for the penalty phase until one week before the hearing and erroneously believed that state law barred access to their client's records. 529 U.S. at 395, 120 S.Ct. 1495. Counsel in Wiggins based their decision not to present any mitigating evidence solely on one page in a presentence investigation report and a collection of social service records that documented their client's placement history in the foster care system. 539 U.S. at 524–25, 123 S.Ct. 2527. And counsel in Rompilla failed to examine a readily available court file that they knew the prosecution planned to introduce as evidence of aggravating factors. 545 U.S. at 389–90, 125 S.Ct. 2456.

In light of Supreme Court precedent, then, we cannot say that the state court's determination that counsel conducted a reasonable investigation into psychological mitigating evidence constituted an unreasonable application of clearly established federal law. Counsel based the decision not to pursue a psychological mitigation strategy on the opinions of two mental-health professionals—Drs. Givon and Miller—each of whom had interviewed Worthington twice. Dr. Givon had reviewed a substantial collection of records pertaining to Worthington's social and medical history. Likewise, Dr. Miller demonstrated significant familiarity with many of the records documenting Worthington's background. See State App. 494 (noting Dr. Kessler's report); id. (noting Dr. Legan's report); id. (noting reports from the Illinois Department of Correction, Youth Division); id. 494–95 (noting records of Dr. Ryall's sessions). Further, Dr. Miller was aware of the physical and sexual abuse that Worthington suffered as a child. See id. 493. He also knew that Worthington's grandmother was chronically hospitalized for schizophrenia and that both of Worthington's parents had been in psychiatric hospitals and rehabilitation programs. See id. 496. We cannot conclude, therefore, that the opinions of Drs. Givon and Miller were so lacking in factual basis that the state court unreasonably concluded that counsel had conducted an adequate investigation.FN8

We observe that the present case is plainly distinguishable from Antwine v. Delo, 54 F.3d 1357 (8th Cir.1995), where, conducting habeas review under the pre-AEDPA standard, this court held unreasonable an attorney's decision to limit investigation of petitioner's mental condition. There, counsel based its decision solely on the results of a cursory court-ordered mental examination. Id. at 1365. Although the psychiatrist's conclusions were facially inconsistent with available evidence, counsel did not seek any further examination, instead employing “an emotional beg-for-mercy approach” at the penalty phase hearing. Id. at 1367. Because “limiting the investigation was not reasonable,” this court determined that “the subsequent strategic choice” was similarly unreasonable. Id.

Having determined that counsel reasonably investigated the potential for a psychological mitigation strategy, we now examine the state court's decision that counsel reasonably decided against further investigating and presenting expert psychological evidence at the penalty phase. Because Worthington has failed to show that his attorneys' investigation was deficient, there is “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see also Rompilla, 545 U.S. at 390, 125 S.Ct. 2456 (“Questioning a few more family members and searching for old records can promise less than looking for a needle in a haystack, when a lawyer truly has reason to doubt there is any needle there.”). Rosenblum's testimony demonstrates that counsel's decisionmaking in this case fell well within the bounds of reasonable trial strategy. After “a rather lengthy [telephone] conversation” with Dr. Miller, Rosenblum decided against pursuing a psychological mitigation strategy. Dr. Miller corroborated Dr. Givon's diagnosis of antisocial personality disorder, which Rosenblum considered “very damaging.” Additionally, Rosenblum expressed concern that “[s]ome of [Worthington's] self reporting ... was not consistent under hypnosis.” This inconsistency, he feared, would undermine efforts to challenge Dr. Givon's diagnosis of malingering, especially in light of Dr. Miller's inability to refute Dr. Givon's conclusion. The beneficial “nuggets” in Dr. Miller's diagnoses were far outweighed by the “substantial negative impact his testimony would have had.” For these reasons, counsel decided not to present testimony regarding Worthington's mental health at the penalty phase. Instead counsel presented a meaningful mitigation case that focused on Worthington's abusive background and persuaded the sentencing court to find as mitigating factors his dysfunctional family life, his abuse and neglect as a child, and his history of drug abuse. “Taking into account the leeway given to counsel under the Strickland standard and that given to the state courts under 28 U.S.C. § 2254(d),” Marcrum, 509 F.3d at 501, we conclude that Worthington has not overcome the strong presumption that counsel acted reasonably in deciding against pursuing an expert psychological mitigation strategy, see Link, 469 F.3d at 1204.FN9 As a result, we reverse the district court's grant of habeas relief on this claim.

FN9. Because we hold that the state court's conclusion that Worthington failed to satisfy the first prong of Strickland was not an unreasonable application of clearly established federal law, we do not reach the second prong of the analysis—whether the psychological evidence propounded by Worthington post-conviction had a reasonable probability of altering the outcome.

B. Worthington's Cross–Appeal

Worthington first cross-appeals the district court's rejection of his argument that trial counsel performed ineffectively by failing to conduct an adequate investigation and present further mitigating evidence through additional witnesses. In particular, Worthington asserts that his parents—Patricia Washburn (“Patricia”) and Richard Worthington (“Richard”)—would have testified about his troubled upbringing. The Missouri Supreme Court held that counsel reasonably decided not to present Patricia's testimony because, when contacted, she had downplayed Worthington's traumatic childhood and endeavored “to portray herself as a good mother.” Worthington, 166 S.W.3d at 578. The court also noted that counsel believed that Patricia was under the influence of cocaine on the day she would have testified at trial. Id. Therefore, the court concluded, “[i]t was not unreasonable for counsel to make the strategic choice that it was better to use records of Mr. Worthington's history of abuse from Illinois than to call his mother at the trial.” Id. Turning to Worthington's father, the court determined that, even though counsel had not spoken with Richard, their decision not to present his testimony was also reasonable. According to the court, Worthington's father was “difficult to locate” and “did not have much of a relationship” with Worthington. Id. In any event, the court observed that Carol Tegard—Worthington's aunt—“was able to testify to much of the same evidence that Mr. Worthington's parents would have offered.” Id. Moreover, the sentencing court reviewed numerous records detailing Worthington's abusive background. Id. For these reasons, the Missouri Supreme Court concluded, “offering additional evidence of ... abuse by calling Mr. Worthington's parents was not necessary nor was its absence prejudicial.” Id.

Applying AEDPA review,FN10 the district court upheld the state court conclusion that counsel's decision not to call Patricia was reasonable under Strickland. Worthington, 619 F.Supp.2d at 679. And while the district court disagreed with the Missouri Supreme Court's factual findings that Richard was difficult to locate and had only a sporadic relationship with his son, it nevertheless determined that “[i]t was not unreasonable for the Missouri Supreme Court to have concluded that Richard Worthington's testimony would have been cumulative, and petitioner was not prejudiced.” Id. FN10. Unlike Warden Roper's appeal, the parties agree that the AEDPA standard of review governs the claims regarding Worthington's parents and Charlotte Peroti's testimony.

With regard to his mother's testimony, Worthington challenges the Missouri Supreme Court's determination that counsel reasonably decided against calling Patricia as a witness. Worthington contends that the postconviction trial court did not make “an explicit factual finding” that “counsel had a tactical basis for not calling [Patricia] because her testimony might harm the defense.” Thus, asserts Worthington, the Missouri Supreme Court's conclusion that counsel made a reasonable strategic decision was an unreasonable determination of the facts because it was “based upon a non-existent factual finding.” See 28 U.S.C. § 2254(d)(2), (e)(1). As an initial matter, we note that the postconviction trial court did, in fact, find that counsel's decision not to call Patricia was a reasonable decision based on her cocaine habit and her statements downplaying Worthington's abusive childhood. See Worthington, No. 00–12558, slip op. at 11. Even had the Missouri Supreme Court based its decision on findings of fact independent from those of the postconviction trial court, however, we could not grant Worthington's habeas petition absent a showing that those findings were unreasonable. Section 2254(e)(1)'s “presumption of correctness applies to factual determinations made by state courts, whether the court be a trial court or an appellate court.” Perry v. Kemna, 356 F.3d 880, 883 (8th Cir.2004) (internal quotation marks omitted); see also Sumner v. Mata, 449 U.S. 539, 546–47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The Missouri Supreme Court based its decision on the same factual findings noted by the postconviction trial court, see Worthington, 166 S.W.3d at 578, and Worthington has made no showing that those findings do not enjoy the support of the record.

With regard to the testimony of his father, Worthington argues that the district court erred in upholding as reasonable the Missouri Supreme Court's decision that Worthington was not prejudiced by the absence of Richard's testimony. Had Richard testified, Worthington contends, the sentencing court would have gained a better understanding of Worthington's abusive background. We agree with the district court, however, that the Missouri Supreme Court reasonably concluded that Worthington suffered no prejudice, because Richard's testimony would have been cumulative of evidence already before the sentencing court. Worthington, 619 F.Supp.2d at 679.

At the penalty phase, the sentencing court heard the testimony of Carol Tegard, who described Worthington's tormented childhood and youth. She testified about the widespread drug and alcohol abuse that surrounded Worthington during his early years, as well as his mother's prostitution. Worthington and Patricia were “constantly moving,” at one point living out of a car until Patricia sold it for drug money. Tegard also testified that Patricia attempted suicide numerous times in Worthington's presence. Richard was a drug user and dealer who had minimal contact with the family until Worthington's adolescent years. When he did reenter Worthington's life, Tegard testified, Richard taught his son how to burglarize. According to Tegard, Worthington underwent psychiatric treatment and checked into a drug rehabilitation program, but his family members refused to be supportive.

In addition to Tegard's testimony, numerous records before the sentencing court described the severe neglect and abuse that Worthington suffered as a child. For example, a 1989 psychological evaluation report described Worthington as having grown up “in a dysfunctional chaotic family made up of his chronic alcoholic mother and a heroin addicted father.” The report also noted “chronic neglect and emotional, physical, and sexual abuse over the years.” Records from the Methodist Medical Center of Illinois and the White Oaks Rehabilitation Center further described Worthington's chaotic upbringing, including his parents' drug addiction and physical abuse inflicted by a babysitter. Finally, the PSR provided numerous examples of Worthington's dysfunctional childhood, as well as detailing instances of physical and sexual abuse.

Worthington discounts the value of the evidence before the sentencing court for two reasons, neither of which is persuasive. First, he argues that Richard's testimony is not cumulative because the evidence before the sentencing court was “generic” and “skeletal.” As described above, though, the state court's decision to the contrary is supported by the record. Tegard's testimony, the documentary evidence, and the PSR supplied a graphic and comprehensive account of Worthington's background. This stands in stark contrast to the evidence in the cases on which Worthington relies. See Outten v. Kearney, 464 F.3d 401, 421 (3d Cir.2006) (observing that trial counsel failed to present any evidence of defendant's sexual abuse, possible neurological damage, or learning disabilities); Ainsworth v. Woodford, 268 F.3d 868, 874 (9th Cir.2001) (determining that counsel adduced no substantive evidence in mitigation); Lewis v. Johnson, 2000 WL 1568168, at *4 (5th Cir. Sept.13, 2000) (noting that single mitigation witness testified little more than that defendant “had a generally unhappy childhood”), vacated in part, 2000 WL 35549205 (5th Cir. Dec.21, 2000); Collier v. Turpin, 177 F.3d 1184, 1201 (11th Cir.1999) (observing that counsel elicited only that defendant was a “hard worker” and had a reputation for truthfulness).

Second, Worthington dismisses the records before the sentencing court because “there is no evidence that the ... court thoroughly reviewed any of these records before issuing its sentencing verdict.” The penalty phase record belies Worthington's assertion, however. The sentence issued by the court was expressly “[b]ased on the evidence presented to this Court.” Cf. Strickland, 466 U.S. at 695, 104 S.Ct. 2052 (“[T]he assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision.”). Indeed, based on the mitigating evidence before it, the sentencing court found as non-statutory mitigating circumstances that Worthington had a dysfunctional family, was abused and neglected as a child, and was a long-term drug abuser. Thus, Worthington's assertion that the sentencing court failed to review the record is meritless.

In light of Tegard's testimony, the extensive documentary evidence, and the PSR, we agree with the district court that the Missouri Supreme Court's decision that Worthington suffered no prejudice in the absence of his father's testimony did not unreasonably apply clearly established federal law. Nor was it based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. The additional testimony “did not cover any new subject matter and was not substantially more persuasive” than that actually presented, Eley v. Bagley, 604 F.3d 958, 969 (6th Cir.2010), and “would barely have altered the sentencing profile presented” during the penalty phase, Strickland, 466 U.S. at 700, 104 S.Ct. 2052. Ultimately, much of what Worthington now claims should have been presented during the penalty phase was, in fact, considered by sentencing court. Thus, because the Missouri Supreme Court reasonably concluded that counsel's decision not to present the testimony of Worthington's parents was not constitutionally ineffective,FN11 we affirm the denial of habeas relief on that claim. FN12

FN11. On appeal, Worthington also refers to unspecified “additional evidence of [his] childhood and social history.” Although it is unclear whether Worthington is referring to evidence beyond that of his parents, the district court interpreted the claim to include “other family members and possibly former babysitters.” Worthington, 619 F.Supp.2d at 678. Assuming, without deciding, that Worthington properly raised this argument before both the district court and this court, we agree with the district court that, even under de novo review, counsel's failure to present testimony of his extended family members and childhood babysitters did not prejudice Worthington because such testimony also would be cumulative. FN12. Worthington also argues that the district court erred by “artificially truncating” his ineffective-assistance claim into two separate issues: whether counsel was constitutionally ineffective for failing to pursue expert psychological testimony, and whether counsel was constitutionally ineffective for failing to present additional lay witness mitigation testimony. According to Worthington, in assessing prejudice the district court should have balanced the aggravating evidence against the mitigating evidence presented at the sentencing phase as well as the entire mitigating evidence adduced post-conviction. To be sure, “it is necessary to consider all the relevant evidence that the [factfinder] would have had before it if [counsel] had pursued the different path.” Wong v. Belmontes, 558 U.S. 15, 130 S.Ct. 383, 386, 175 L.Ed.2d 328 (2009). But because we earlier held that Worthington's ineffective-assistance claim regarding investigating and presenting psychological expert mitigation testimony did not amount to constitutionally deficient representation, supra Section II.A, his “cumulative error argument” is without merit, Becker v. Luebbers, 578 F.3d 907, 914 n. 5 (8th Cir.2009), cert. denied, 561 U.S. ––––, 130 S.Ct. 3520, 177 L.Ed.2d 1103 (2010); see also Wainwright v. Lockhart, 80 F.3d 1226, 1233 (8th Cir.1996). Worthington's argument also fails because cumulative testimony, by its very nature, adds nothing to the evidence considered by the sentencing court. Consequently, the duplicative testimony of Worthington's parents would not have impacted the balance of mitigating and aggravating evidence under any circumstances.

Worthington also cross-appeals the district court's denial of his claim that trial counsel was constitutionally deficient for failing to investigate the background of State witness Charlotte Peroti and object to her testimony on the grounds that the State had failed to disclose her correct name and the substance of her testimony. Peroti testified at the penalty phase that Worthington had broken into her house shortly before he murdered Griffin and that he had attempted to sexually assault her. In addition, Peroti testified that Worthington stole her car.

Although the State had endorsed Peroti as a witness more than two years before the commencement of the penalty phase hearing, the State had not given the defense notice of the subject matter of her testimony. As a result, on direct appeal the Missouri Supreme Court determined that the State's failure to notify the defense violated State v. Debler, 856 S.W.2d 641 (Mo. banc 1993), which held that evidence of uncharged misconduct is admissible during the penalty phase only if the State provides advance notice to the defendant. Id. at 657; see also Worthington, 8 S.W.3d at 90. However, because counsel had not objected to Peroti's testimony, the Missouri Supreme Court applied plain error review and denied relief, determining that “manifest injustice” had not resulted from the error. 8 S.W.3d at 90. Worthington had not been prejudiced by the Debler violation, the court maintained, because the dangers against which Debler sought to guard were absent in Worthington's case. Id. at 90–91. In crafting its notice requirement, the court in Debler highlighted the risk that “the average juror” would fail to differentiate between evidence of prior convictions and “significantly less reliable” evidence of uncharged criminal activity. 856 S.W.2d at 657. In the present case, the fact that a judge—rather than a jury—had determined Worthington's sentence obviated the danger identified in Debler that an “average juror” would give undue weight to Peroti's testimony regarding the uncharged sexual assault, burglary, and theft. Worthington, 8 S.W.3d at 90–91 & n. 5. The Missouri Supreme Court also found that, despite the Debler violation, “[d]efense counsel was prepared to cross-examine [Peroti] on the details of her failure to report the burglary and assault to police.” Id. at 91.

The Missouri Supreme Court likewise denied relief at the post-conviction stage, holding that Worthington had not been prejudiced by counsel's failure to object to Peroti's testimony and seek a continuance to investigate her allegations. Worthington, 166 S.W.3d at 580. The court found that “counsel knew all about the events to which [Peroti] testified and cross-examined her effectively about them.” Id. at 581. Worthington also pointed to evidence that Peroti had been convicted of passing bad checks and that she had exaggerated her role as a police informant, arguing that had trial counsel known of this evidence they could have impeached her more effectively. The court acknowledged that counsel had been unaware of these facts but determined that they nevertheless had forcefully challenged Peroti's allegations by eliciting her strong antipathy towards Worthington. Thus, the court concluded, “[t]here is no reasonable probability that the minor additional impeachment value of showing that she had a prior bad check conviction and that she may have exaggerated her role as a police informant affected the outcome of the case.” Id.

Reviewing the Missouri Supreme Court decision under AEDPA, the district court found the state court's conclusion that counsel “knew all about” Peroti's allegations to be an unreasonable determination of the facts. Worthington, 619 F.Supp.2d at 692–93. However, the district court concluded that the state court's decision was not based on this mistaken factual determination. Because counsel effectively impeached Peroti's testimony and established her bias during cross-examination, the state court found that Worthington suffered no prejudice. Id. at 695 (“There is no reasonable probability that had the sentencing judge stricken her testimony or allowed counsel additional time to investigate the alleged prior bad acts, the outcome of the case would have been affected.”).

Worthington urges us to reverse the district court for two reasons. First, he contends that the Missouri Supreme Court based its decision on an unreasonable determination of the facts, which led to its conclusion that he suffered no prejudice from counsel's failure to object to the lack of adequate notice of Peroti's testimony and to seek a continuance to investigate her background. Specifically, Worthington challenges the state court's factual finding that defense counsel had effectively cross-examined Peroti. See 28 U.S.C. § 2254(d)(2). “[A] state court decision involves ‘an unreasonable determination of the facts in light of the evidence presented in state court proceedings' only if it is shown that the state court's presumptively correct factual findings do not enjoy support in the record.” Jones v. Luebbers, 359 F.3d 1005, 1011 (8th Cir.2004) (citation omitted); 28 U.S.C. § 2254(e)(1) (“[A petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”). Like the district court, we hold that the state court's determination is reasonable and supported by the record.

Worthington argues that had counsel sufficiently prepared to examine Peroti, they would have been able to impeach her with evidence regarding her bad check conviction and the fact that she allegedly had exaggerated her work as an undercover drug informant. However, the state court found that counsel effectively cross-examined Peroti without pursuing those avenues for impeachment, and we cannot say that its finding is unreasonable under AEDPA. Even without prior knowledge of the substance of Peroti's testimony, counsel succeeded in establishing her bias against Worthington. On cross-examination, Peroti acknowledged that she had volunteered to work with the police “to try to get Michael Worthington arrested for drugs.” Moreover, counsel elicited that Peroti wanted to “make sure [Worthington] got out of [her] area” because he had supplied her son and other children with drugs and alcohol. Peroti also admitted that she had never reported the alleged sexual assault to the police and that she had continued to interact with Worthington after the assault. Likewise, the PSR before the sentencing court detailed a police report that documented the incident only as “Burglary 1st and Stealing Over $150,” further calling into question Peroti's testimony regarding the alleged sexual assault. Accordingly, we hold that there is sufficient record evidence to support the state court finding that counsel effectively cross-examined Peroti and that the court's determination of fact is thus not unreasonable in light of the evidence before it. We may not, therefore, upset the state court's determination that Worthington suffered no prejudice as a result of counsel's failure to investigate Peroti's background.

Second, Worthington proffers an alternative ground for overturning the Missouri Supreme Court's decision that he was not prejudiced by counsel's failure to object to Peroti's testimony under Debler. Had counsel objected, Worthington contends, Peroti's testimony likely would have been excluded in its entirety, thus giving rise to a reasonable probability that the sentencing court would not have imposed the death penalty. As an initial matter, the Missouri Supreme Court has consistently maintained that Debler's notice requirement only “slightly circumscribe[s]” the “wide latitude” that both the State and the defense enjoy at the penalty phase “to introduce any evidence regarding the defendant's character that assists the jury in determining the appropriate punishment.” State v. Smith, 32 S.W.3d 532, 554 (Mo.2000) (citation omitted); see also State v. Thompson, 985 S.W.2d 779, 792 (Mo. banc 1999); State v. Clay, 975 S.W.2d 121, 132 (Mo.1998). Against this default principle that “the decision-maker is entitled to any evidence that assists in” the penalty determination, Debler, 856 S.W.2d at 656, we think it likely that, especially in the absence of a jury, the sentencing court would have simply granted a brief continuance to allow counsel to investigate Peroti, rather than exclude her testimony entirely. See State v. Parker, 886 S.W.2d 908, 917 (Mo. banc 1994) (observing, in the context of the State's alleged failure to timely disclose evidence under Missouri Supreme Court Rule 25.03, that “the proper remedy was continuance”); State v. Brass, 781 S.W.2d 565, 566 (Mo.Ct.App.1989) (“Once surprise has occurred, the proper remedy is to request a continuance or postponement.”). Moreover, because we earlier upheld the state court's determination that further investigation of Peroti's allegations would not have altered the result of the penalty phase, we reiterate that counsel's failure to secure a continuance did not prejudice Worthington.

Nevertheless, even considering the unlikely possibility that the trial court would have ordered the wholesale exclusion of Peroti's testimony, we agree with the district court that there was no reasonable probability that the sentencing court would have imposed a sentence of life imprisonment. See Wiggins, 539 U.S. at 534, 123 S.Ct. 2527. Despite Worthington's assertion to the contrary, Peroti's testimony does not appear to be “the most damaging aggravating evidence” presented at the penalty phase. As we discussed above, Missouri courts have repeatedly acknowledged that evidence of uncharged criminal misconduct is potentially unreliable. Debler, 856 S.W.2d at 657 (“Because no jury or judge has previously determined a defendant's guilt for uncharged criminal activity, such evidence is significantly less reliable than evidence related to prior convictions.”); Smith, 32 S.W.3d at 554; Thompson, 985 S.W.2d at 792; see also Strickland, 466 U.S. at 695, 104 S.Ct. 2052 (“[T]he assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision.”). Indeed, the sentencing court made no mention of the alleged sexual assault when it issued the penalty. Rather the court pointed to only two statutory aggravating factors, neither of which implicated Peroti's testimony. The sentencing court subsequently filed a “Report of the Trial Judge” listing three nonstatutory aggravating circumstances, none of which included Peroti's allegations of uncharged sexual assault, burglary, and theft. Accordingly, the strictures of AEDPA review do not permit us to disturb the state court decision that Worthington suffered no prejudice as a result of counsel's failure to object to the lack of adequate notice of Peroti's testimony.FN13 We affirm the denial of habeas relief on this ground.

FN13. Worthington also raises a perfunctory argument that, had the sentencing court improperly admitted Peroti's testimony over a timely Debler objection, there is a reasonable likelihood that his sentence would have been overturned on direct appeal. Because this theory was not raised before the district court—or even the state courts—we decline to address it. Whitmore v. Avery, 26 F.3d 1426, 1429 (8th Cir.1994), vacated on other grounds, 513 U.S. 1141, 115 S.Ct. 1086, 130 L.Ed.2d 1056 (1995); see also Cummings v. Norton, 393 F.3d 1186, 1190 (10th Cir.2005) (“In order to preserve the integrity of the appellate structure, we should not be considered a ‘second-shot’ forum, a forum where secondary, back-up theories may be mounted for the first time.”) (quoting Tele–Comm'ns, Inc. v. Comm'r, 104 F.3d 1229, 1232–33 (10th Cir.1997)). In any event, this theory of prejudice is meritless because “it is difficult to base reversible error on the erroneous admission of evidence in a court-tried case.” Worthington, 166 S.W.3d at 573 (quoting Blackburn v. Richardson, 849 S.W.2d 281, 291 (Mo.Ct.App.1993)).

III. CONCLUSION