Wesley Purkey v. United States, 729 F.3d 860

Purkey was convicted in 2003 of interstate kidnapping, rape, and murder of Jennifer Long, with a penalty-phase presentation spanning two days and multiple witnesses.
The jury found all six statutory aggravating factors and three of four non-statutory factors, and the jury sentenced Purkey to death.
Purkey filed a 28 U.S.C. § 2255 motion asserting ineffective assistance of counsel during the penalty phase and requested an evidentiary hearing.
Purkey submitted a proffer of new mitigating evidence and affidavits from witnesses who did or did not testify, arguing Duchardt underperformed in presenting mitigation.
The district court denied the motion, finding Duchardt’s performance not deficient and, alternatively, that the proffered evidence failed to establish prejudice; it also denied an evidentiary hearing.
This court granted a certificate of appealability on the effectiveness-of-counsel issue and now affirms, holding no prejudice established despite assuming deficient performance.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Duchardt deficient inpenalty-phase representation?	Purkey asserts Duchardt failed to adequately prepare and present mitigating witnesses/evidence.	Duchardt contends his strategy and preparation were reasonable and supported by the record and affidavits.	No prejudice established; court AFFIRMS denial of relief.
Did Purkey show prejudice from Duchardt's alleged deficiencies?	Purkey contends the new evidence would have changed sentencing if presented.	The government and Duchardt argue the evidence is cumulative and insufficient to alter the outcome.	Prejudice not shown; new evidence is largely cumulative and insignificant relative to strong aggravation.
Did the district court abuse its discretion by denying an evidentiary hearing?	Purkey seeks an evidentiary hearing to develop the new mitigating evidence.	Court concluded the record conclusively showed no relief and no need for a hearing.	No abuse of discretion; no hearing required.

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (ineffective assistance standard: deficient performance and prejudice required)
Wong v. Belmontes, 558 U.S. 15 (U.S. 2010) (prejudice standard: probability of a different outcome)
Wiggins v. Smith, 539 U.S. 510 (U.S. 2003) (mitigating evidence and prejudice context at sentencing)
Cullen v. Pinholster, 131 S. Ct. 1388 (U.S. 2011) (limitations on new evidence in habeas review; prejudice assessment)
Harrington v. Richter, 131 S. Ct. 770 (U.S. 2011) (substantial likelihood of a different result required for prejudice)
Hill v. Lockhart, 474 U.S. 52 (U.S. 1985) (prejudice under Strickland in collateral review)
Hanegan v. Miller, 663 F.3d 349 (8th Cir. 2011) (deficient performance but no prejudice in habeas context)
Bobby v. Van Hook, 558 U.S. 4 (U.S. 2009) (no prejudice where minor additional details don't change outcome)