Cole v. Roper
2010 U.S. App. LEXIS 23128
| 8th Cir. | 2010Background
- Cole killed two people after breaking into Terri Cole's house; he stabbed Curtis Curtis to death and Terri survived with injuries; DNA linked to both victims' blood on knife and Cole's blood at scene; he claimed Curtis attacked him and Terri delivered fatal wounds; he was convicted of first-degree murder, first-degree assault, first-degree burglary, and two armed criminal action counts, and sentenced to death for Curtis's murder plus life terms and 30-year term; Missouri Supreme Court affirmed on direct appeal; postconviction relief denied; petition for habeas corpus raised six claimed errors including Batson, ineffective assistance in investigations, restraint issues, prosecutorial misconduct, and cumulative errors; district court denied relief; on appeal, we review de novo AEDPA standards; specific Batson issue addresses Chambers strike and Missouri Supreme Court's analysis; other claims concern trial counsel's investigation into mental state and prison conduct, visibility of restraints, prosecutorial closing arguments, and cumulative error; the panel affirms denial of relief, with Judge Bye concurring in part and dissenting in part on two points
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Batson claim on veniremember Chambers | Cole argues prosecutor's strike of Chambers was race-based. | Roper argues Missouri court found race-neutral reasons not pretextual; Chambers not similarly situated. | Missouri courts' Batson ruling not contrary to or unreasonable application of law; no clear and convincing evidence of purposeful discrimination. |
| Ineffective assistance: failure to investigate mental/emotional disturbance | Cole contends trial counsel should have sought another expert and lay witnesses to show extreme emotional distress. | Counsel relied on two pretrial experts; additional evidence would have been unlikely to change outcome. | State court's Strickland adjudication not unreasonable; no prejudice shown. |
| Ineffective assistance: failure to present jailhousegood conduct evidence (penalty phase) | Counsel failed to investigate/present Bradford, Cochrel, and Sister Klump; jailhouse evidence could mitigate. | Counsel deemed such evidence overlapping and potentially harmful; her strategy reasonable. | Missouri Supreme Court's decision unreasonable under Skipper/ Williams; prejudice shown; requires relief. |
| Visible restraints during guilt/penalty phases | Deck/improper shackling violated due process; restraints were visible and prejudicial. | No substantial visibility; Deck not retroactive to Cole's case; no prejudice. | Claim 7 defaulted; Claim 16 not defaulted but Deck inapplicable; no relief based on Deck. |
| Prosecutorial misconduct in closing arguments; cumulative error | Prosecutor's remarks demeaned defendant; urged punitive messages; some remarks improper. | Most remarks were not prejudicial under Darden; cumulative error not shown. | Missouri Supreme Court's handling not contrary to clearly established federal law; no habeas relief for these claims. |
| Cumulative errors | The combined errors violated due process. | Hall v. Luebbers forecloses cumulative-error relief. | Affirmed district court; no relief for cumulative errors. |
Key Cases Cited
- Batson v. Kentucky, 476 U.S. 79 (1986) (prohibition on using peremptory challenges to exclude jurors on race)
- Snyder v. Louisiana, 552 U.S. 472 (2008) (requires factual basis for Batson ruling; allows considering all circumstances)
- Miller-El v. Dretke, 545 U.S. 231 (2005) (pretext and circumstantial evidence of discriminatory purpose; jury shuffling concerns)
- Deck v. Missouri, 544 U.S. 622 (2005) (visibly shackling defendant may violate due process)
- Holbrook v. Flynn, 475 U.S. 560 (1986) (unconstitutional to display restraints in a way that communicates guilt)
- Darden v. Wainwright, 477 U.S. 168 (1986) (prosecutorial misconduct standard: must render trial unfair)
- Skipper v. South Carolina, 476 U.S. 1 (1986) (evidence of jailhouse behavior as mitigating; not automatically cumulative/prejudicial)
- Williams v. Taylor, 529 U.S. 362 (2000) (thorough investigation of mitigating evidence; prejudice standard)
- Sears v. Upton, 130 S. Ct. 3259 (2010) (reaffirming Strickland's thorough investigation duty)
- Forsyth v. Ault, 537 F.3d 887 (2008) (8th Cir.: consideration of investigation adequacy)
- Thaler v. Haynes, U.S. , 130 S. Ct. 1171 (2010) (per curiam on Batson/retroactivity context)
- Williams v. Norris, 612 F.3d 941 (2010) (Deck retroactivity discussion in Williams panel)
- Sublett v. Dormire, 217 F.3d 598 (2000) (closing argument considerations; habeas standards)
- Ring v. Arizona, 536 U.S. 584 (2002) (strong capital-sentencing principles influencing later cases)