Kelvin Malone v. Daniel Vasquez, Warden, San Quentin State Prison Jeremiah W. (Jay) Nixon, Missouri Attorney General

HEANEY, Before MURPHY and Circuit ROSENBAUM,1 Judges District Judge. and. MURPHY Malone, Kelvin who was convicted of mur- death, ap- der Missouri and sentenced to peals from the denial the district court2 of petition corpus for a writ of habeas under § 28 U.S.C. 2254. We affirm.

I Kelvin Malone was convicted of the 1981 Parr, year murder of William a 62 taxi old Missouri, Berkeley, driver Louis St. Elder, suburb. Richard a fellow Yellow Cab driver, testified at that around 17,1981, p.m. waiting 11:45 on March he was Greyhound the cab line at Bus Termi- line, nal in St. Louis. Parr was first dispatcher pick Elder heard the tell Parr to up package National Bank for First delivery. The bank was less than three terminal, blocks from the bus and such deliv- top priority. eries were Parr left for the Rosenbaum, Hamilton, 1. The Honorable James M. United Jean C. The Honorable United Chief Judge Judge States District for the District of Minneso- States District Eastern District of for the ta, sitting designation. Missouri. guns compared immediately. passed the from one of these were later Elder bank bank slug minutes Parr left on the to a from brain. about four after .25 caliber taken Parr’s parked in delivery comparisons eye by run and saw Parr’s cab Initial with the naked St. light inconclusive, with the dome on. police front of the bank Louis were an FBI but using comparison micro- ballistics examiner at the corner About a block from the bank scope four determined that all bullets came Locust, saw a black man of Sixth and Elder guns which Malone had one trying hail a cab. with a suitcase Elder he carried when arrived St. Louis and this man as Kelvin Malone. later identified which found in the car his arrest. way night, home that Elder heard On calling Parr dispatcher repeatedly with no charged Malone with the murder Ward, National answer. Daniel a First Bank By of William Parr. the time of the trial on employee, that he left bank at testified 1984, charge this in had been Malone convict- parked but 1:00 a.m. saw a cab front with and in ed and sentenced death California for sitting in seat. a black man the' back just place two that took in that murders state days Police later found an abandoned cab at a few after Parr killed in was Missouri.3 Berkeley. A local appointed 6105 Avila in resident Counsel was in the Parr case on reported seeing 28,1983, a Yellow turn onto Avila Cab November and Malone him directed a.m. on at around 1:20 March 18. Later that quickly possible; as to move to trial as coun- morning body police found Parr’s in En- began sel to meet Malone with about Berkeley. Parr had 26, trance Park been month trial commenced on before March lying, with shot and face down blood 1984, was began preparation and detailed coming right his nose ear. and He was preparation two before weeks trial. Hospital taken to Northeast Christian where trial, police with counsel reviewed Malone pronounced dead he was on arrival. reports, psychological earlier his examina- tion, types other and of information. Malone There Kelvin was evidence that Malone presented during guilt phase no evidence had arrived St. Louis from California on only present- of his and the evidence he evening of March 17 with a suitcase and during penalty phase expert ed was testi- pistols. two .25 caliber Around 1:30 a.m: on mony by Professor James Gilsinan that the 18, Bego, March Emmanuel who lived with deáth is not an effective deterrent. Berkeley, Michael heard a Crenshaw testimony He also offered the of Father Bego knock at door. heard Crenshaw Cleary justifica- historical Francis related to door, say “Kelvin” when he went to the but penalty, tions for the death but it Bego who did not see was there. Later that attorney received. Malone directed his day left for Crenshaw California with Malone family to contact members his miti- of about they departed, in Crenshaw’s car. After gating evidence because he wanted to avoid Bego Greyhound found a bus ticket in the causing pain. them additional trip Angeles leaving basement for a Los on day March convicted on and on the next March arrival in St. with scheduled Louis returned a verdict death. He 12:40 at a.m. on March 18. appear sentencing April chose not to at on police California found Malone and Cren- 26, 1984, when he was sentenced to death. asleep shaw Crenshaw’s car San Jose on He was then returned to California where he March 24 asked for and identification. The remains incarcerated.4 apprehended men drove off instead were and high speed after a appeal chase. The officers found Malone’s direct of his con- Missouri Malone, a small and .25 suitcase two loaded caliber viction was unsuccessful. State ' (Mo.1985) (en banc). pistols in the car. Three bullets test fired 694 723 S.W.2d He (who Myrtle disappeared City 3. parking Malone was convicted the murders of from a Kansas lot 18, 1981). guilt phase on Benham March and Minnie White. In the trial there Benham was also evidence that kidnaped Leroy gunpoint Malone had Combs at argument 4. Counsel stated oral under- he Maria, proceedings pending in Santa March California on federal habeas stood were and that and Jim on he Crenshaw murdered Rankin Malone's California convictions. sought postconviction relief under his motion alter or judgment. then amend the -Rule 27.26. The appealing, Missouri Criminal Procedure notice stated that he was “... (Mo.Ct.App. judgment from the final Malone v. S.W.2d order and issued 1988). petition original Judge His was dismissed the Honorable Jean C. Hamilton on prejudice January because he was not in Mis- judgment without 1996. This and order custody the time it was filed claims corpus souri denied Mr. Malone’s’habeas error____” custody requirement. had a He Rule 27.26 constitutional Malone’s notice of petition appeal Rule 29.15 appeal later refiled under indicates he intended to both replaced post-judgment after it the earlier rule. The new the denial of his motion and require custody, rulings rule did not the district court’s his constitu rejected petition appropriate the trial court on the tional claims. It is in these cir appealed merits. Malone to the Missouri cumstances to appeal construe his notice of encompassing which for factual as Court remanded both orders. See Sweet v. Delo, (8th, Cir.1997). findings complied on whether Malone had F.3d requirement peti- apparent the Rule 29.15 that a ap with Because of Malone’s intent to verify filing all his judgment denying tioner contained both from the peal they petition order, claims that he subsequent understood as the we well 3(c). requirements otherwise waived. The trial court was in- waive the strict of Rule whether, findings Fed.R.App.P. to make this See structed requirement verification had been met and many Malone wishes to raise issues on prosecution on whether the had exercised appeal, including various claims of ineffective racially peremptory challenges. motivated alleges assistance of counsel. He trial coun- The court found that had not verified Malone sel guilt phase was ineffective the of his petition it his and therefore dismissed for trial for call failure to two witnesses who jurisdiction'. lack of The Missouri they would have testified that could not iden- affirmed, Court Malone v. 798 S.W.2d tify they the black man had seen Parr’s (en (Mo.1990) banc), and later dismissed cab, Judge to call United States District petition as moot Malone’s to recall the man- George testify F. Gunn to that he was not appeal. date and reinstate his Malone, during robbery by harmed an armed petition Malone then filed this for a of writ to polygraph suggest- introduce evidence of a corpus. sixty grounds habeas He cited over ing that Malone did not commit one of the relief, for some of had been raised in murders, which prepare adequately California to many state court and of which had not. The stipulation testimony for to obtain a or petition district court denied his after deter- police that two officers found initial ballistics mining proee- that of inconclusive, most the claims were comparisons object and durally because barred Malone had failed to wipe prints evidence of a towel used to verify petition by required his Rule 29.15 gave Parr’s cab and to that he evidence many present and had also failed to arrested, improper false name when to an thorough claims state court. After a re- closing argument, to the cause exclusion for record, view of the the court also concluded juror potential of a on refusal to based his that his claims failed on the merits and later penalty, consider the death and -to several Malone’s motion to denied alter or amend the jury argues instructions. He that his trial judgment. penalty phase was ineffective in- the counsel presenting mitigating

for not evidence from II. family obtaining psychiat- his and not new results, using ric or the of his examination argues The state that not all of Ma argues appel- California exam. Malone that properly lone’s claims are before the court by raising on late counsel was ineffective appeal. because of the content of his notice of appeal every post- in his direct issue raised denying petition The district court order his litigation. conviction considering all and his claims was issued on appeal prosecutorial December but the of of notice Malone also raises claims January denying prosecution focuses aon 1996 order misconduct. He claims the selection,6 counsel,5 regarding jury his claims introduced evidence of not have should misleading testimony by prosecutorial misconduct based prior or two claims of convictions Gary introducing hypnotically Ma- prosecutor delay Admire that on of trial and California testimony, permit- in his California trial and a claim that lone had admitted refreshed vicinity in the where Parr was ting Gary repeat been Admire Malone’s testi- he had says prosecution improp- mony also violated killed. He from his California trials his credibility prosecution of erly aban- right against bolstered self incrimination. Other witnesses, evidence, arguéd. not in and facts by doned include ineffective assistance claims being that he admitted near counsel, posteonviction mentioned a violation scene, could act on the crime right to confront and cross-examine wit- personal feelings general basis of preparation by through nesses lack of crime, that he prevent and bore need to jurors failure to instruct proof. burden ability mitigation consider in all fac- their character, improper in- tors of Malone’s and presents right also claims proof and the structions about burden process violated excuse of a due The weighing aggravating factors. law member cause based his refusal venire presentation of issues favors an adversarial application penalty, of the death consider judicial and to order to conserve resources convictions, prior informing of his cases are in the context ensure that resolved by improper mitigating instructions on Cohen, dispute. of an Flast v. actual addition, aggravating factors. Ma- 1950-51, 83, 96-97, U.S. prosecutor argues lone exercised (1968). present- issues not L.Ed.2d peremptory challenges based on race in vio- brief therefore ed Malone’s should be right protection. to equal of his lation they as abandoned need be treated Jasperson, at 740-41. discussed.7 765 F.2d A. has abandoned several of the B. court by claims made to the district in presenting appellate them brief. his Jas argues that Malone’s consti Missouri Corp., person v. Purolator Courier 765 F.2d may not tutional claims be reached (8th Cir.1985). 736, The 740-41 abandoned pre they properly merits because were not include that he was claims claims denied due in sented for review court. Several of state process equal protection and Missouri’s brought were in Malone’s claims never trial, bringing that delay in him to he was all, Missouri courts at others while were forced choose improperly to between a petitions comply contained that did speedy ap trial and sufficient time for his with Missouri Criminal Procedure Rule 29.15 trial, pointed to prepare counsel for that the responds requiring verification. Malone that requirement pro petition Rule 29.15 that se properly presented, his claims were alter postconviction verify petitions ers their relief any presentation natively, that deficiencies in fifth, sixth, rights violated his under the and may be excused. amendments, a claim fourteenth and that the

prosecution potentially exculpatory presented that have not withheld Claims been Sweet, has also for court review information. Malone abandoned state are defaulted. 1149; Delo, 1024, Nave claims of trial 125 F.3d at v. 62 F.3d several ineffective assistance of regarding jury claims 6. The claims 5.These ineffective assistance include fail- abandoned selection panel allegations are that the was object Greyhound venire not a ure to to introduction of bus community, jurors fair cross section of were empaneled improperly jury, and to an schedule cause, separate improperly excused without preserve appeal, moving to failure issues for and phase not selected for the was (The to strike venire member Berits for cause. trial, panel and the venire was not sworn before puzzling latter claim is since record shows voir dire. objected being to that defense counsel Berits removed for cause because of her that her claim nonetheless, 7. We have reviewed these claims work.) employer would not release her any they fail would event because other procedural on the bars or merits.

717 (8th Cir.1995). barred, sought procedurally tion argues Malone never but he 1030 claims of inef- they court review of thirteen state should be considered nonetheless. counsel,8 of trial seven fective assistance claims These include ineffective assistance of misconduct,9 prosecutorial a claim claims of counsel,11 prosecution a claim that the court was inconsistent over- that the trial right equal protection by violated exer- jurors seeing striking opposition cising peremptory jury strikes on the basis of right to penalty, the death a claim that his rahe, that court made erroneous eviden- confront and cross-examine witnesses tiary rulings,12 improperly that Missouri de- preparation, trial counsel’s lack of violated layed panel and that the venire instruction,10 improper jury four claims of prior to not sworn voir dire. resulted and a claim that his death sentence procedural In order for a state aggravating of unconstitutional rule from the use prevent circumstances. federal review of Malone’s constitu firmly tional claims it must have been estab The state also contends Malone failed to followed, lished, regularly readily ascer Supreme comply with .Missouri Court Rule applied tainable when it was to him. v. Ford 29.15, requires petitioner verify which Georgia, 498 111 U.S. S.Ct. petition contains all of his claims and (1991). 857, 112 L.Ed.2d 935 This court has acknowledge any not included are previously require held that the verification purpose of the rule is ensure waived. The pro- independent that all claims can be considered one ment of Rule 29.15 is an ceeding just meaning- so verification is not adequate procedural bar. See Oxford procedural Kilgore v. Delo, (8th Cir.1995). less device. 59 F.3d It is (Mo.1990) banc). (en S.W.2d independent state basis for decision be finding state trial court made a factual with, cause it is neither intertwined nor de petition, Malone had not verified his and the law, Oklahoma, pendent upon, federal Ake v. Missouri on that find- Court relied ing petition when it for lack of dismissed L,Ed.2d (1985), adequate and an basis Malone, jurisdiction. at 151. S.W.2d because it meets the Ford test. At the time petition was dismissed for failure to argu- Malone’s counsel conceded at oral 29.15, comply ment that “the with Rule verifi under letter the law” postconviction peti- firmly claims raised his state cation rule was established and eonsis- any aggravating 8. These claims are that counsel was ineffective the crime and factors must be trial; by failing prepare adequately to for to beyond found a reasonable Malone doubt. also witnesses; investigate prepare state to for the alleges failing his trial counsel was ineffective in Admire, Gary present cross examination of to object these at to to errors trial. test; Judge polygraph results Malone's to call Gunn; object to to evidence of the false he name 11. Malone claims counsel erred in his failure to arrest, gave wipe prints a used to from towel subpoena a man witnesses who saw black cab, crimes; object prior Parr's and his to to the cab, Elder, expert depose obtain Parr's Richard composition juty panel or the exclusion testimony, testimony hypnotically on refreshed potential juror opposition a based on his to the stipulations testify, contact Crenshaw to obtain improper closing argument; death or testimony that ballistics tests were in- or initial psychological report; use the California and to conclusive, family testify mitigation, call his independently assess his mental health. existing psychological report or ob- and use his prosecutor engaged 9. are These claims tain new one. by introducing misleading in misconduct evi- prior dence and evidence of crimes and and 12. Malone claims that Elder’s identification by improper closing argument (arguing an that hypnotically testimony of another wit- refreshed proof, had the burden that Malone ness not have been admitted and that he should personal feeling general could act on desire to testimony prevented soliciting was law, evidence, arguing enforce the facts not in Bego Emmanuel about Crenshaw's whereabouts witnesses). bolstering credibility and of state that the latter was not available to testi- to show fy., that of his He claims evidence California improperly 10. Malone claims that was death should not have been admitted unanimously particu- sentence instructed that it must find testimony mitigating penalty phase during lar and and that the factors not instructed on imposes weighing aggravating Cleary improperly limits Missodri excluded. of Father was mitigating factors that all elements of .and 718 appeal was filed. Since until an prede- its verification the rule and tently under enforced 27,26 limit on amend- Malone, 151; placed no time Rule see also 798 S.W.2d cessor. (Mo.Ct. ments, petition could be 469, an unverified State, 470 769 S.W.2d

Mills v. in the ab- State, 738, verification amended to include 588 Riley v. S.W.2d App.1989); Rector, objection. Id. at 395. The Rod- of an v. 547 sence (Mo.Ct.App.1979); State 741 objection an had to court held that such 525, (Mo.Ct.App.1977). The rule den 526 S.W.2d ap- petition an before the reached Rule be made readily ascertainable well. failure of the state’s 29.15(d) pellate court. Because that a “movant shall clearly stated Rodden, the timely objection in make a are included and that all his claims declare” The court ex- had to be reached. Mo. merits not included are waived. those 29.15, Rule 29.15(d). distinguished the new petition- pressly It also referred R.Crim.P. placed a time limit on amendments a which Procedural Form No. to Criminal ers peti- limitation on the time to amend petition which strict a Rule 2915 sample form for comply the verification in order to with statement with a blank tion a verification included jurisdic- and made verification a requirement petitioner’s signature. for the raised at prerequisite that could be tional in Malone’s unverified The claims included verify within the any time. Id. Failure to petition may not now be considered state Rule 29.15 is treated as time allowed under the bar in Rule 29.15 the merits because jurisdictional barring defect consideration of adequate ground independent, objection is petition no matter when the Oxford, panel 59 F.3d at This decision. Id, citing Kilgore, 791 S.W.2d 393 made. holding the court en is bound unless Reynolds, 783 S.W.2d 500. Campbell the issue. banc were to reconsider jurisdictional pre- comply with this failed (8th Cir.1992). Purkett, 957 F.2d 536 v. filing a verified Rule 29.15 requisite argues that the rule was not The dissent though verification was well motion even regularly followed at clearly established consistently applied rule at the settled and Malone, applied but that it the time was inconsistency no time. There is therefore persuasive. Both at the argument is not they his case and Rodden because between petition unverified was filed time Malone’s with dif- under different rules were decided by the it was considered and at the time on verification. ferent limitations consistently treat state courts Missouri argues that Malone’s failure to verify jurisdictional The dissent failure to as a ed the proce- verify petition does not amount to prevented peti of a consideration defect Vinson, that of because the fault was v. default tion. See State S.W.2d dural. (en State, (Mo.1990) banc); subsequent postconviction counsel and Malone v. State, 151; required a remand in such Reynolds v. 783 Missouri cases 798 S.W.2d at fault, explore but these (Mo.Ct.App.1990); Shepherd v. circumstances to S.W.2d until after Malone’s (Mo.Ct.App.1982); decided 637 S.W.2d cases (Mo.Ct. Rector, petition rejected. There is no entitle- State v. S.W.2d postconviction Coleman All but one of the cases the ment App.1977). 2546, 722, 755, Thompson, 501 111 S.Ct. support argument in of its U.S. dissent cites 2567-68, (1991), any 115 L.Ed.2d 640 and unsettled were decided after the rule was satisfy the comply failure of Malone’s counsel to to with the verification Malone failed 29.15 is not a basis to requirements had been Rule requirement and after the rule Id.; Nave, procedural bar. 62 excuse the applied to him. event, any was not at 1034. In F.3d upon that The lone ease the dissent relies by to with the prejudiced comply the failure peti- decided at the time Malone’s been requirement because the state verification by the state courts does tion was considered reject the merits court did consider and help v. 795 him. See Rodden claims he raised. all the (Mo.1990) (en banc). The merits S.W.2d 393 attempts of the claims Malone Almost all petition of an unverified were considered Rodden, petition have been involving 27.26 to assert his habeas but in that case Rule both procedurally defaulted. This includes objected to the lack of the state had

719 courts, ability shown it interfered with his presented never to the to file. those Nave, Sweet, 1149; at F.3d at 62 F.3d His California incarceration did not amount 125 1030; to with raised in his state interference his access to the and those which were postconvietion petition. e.g., We are courts and is therefore not unverified cause. See Iowa, 1100, finding Lamp v. State 122 by the state court’s factual F.3d 1105 bound (8th Cir.1997) (no comply petitioner’s to with the verifi- cause where that Malone failed 29.15, blocked); requirement of Rule 28 U.S.C. access to court is not cation Amadeo Cf. Zant, 214, 2254(e)(1), 220-21, 108 1771, v. by precedent § our 486 U.S. and S.Ct. Oxford (1988) 1775-76, 100 requirement (deliberately verification is L.Ed.2d 249 that the Missouri firmly procedure withholding plan rule of state evidence of a established exclude cause). jurors petition Any of a for habe- black constitutes that bars consideration error compliance. by postconviction corpus unless there has been counsel could not be 59 F.3d at 745. cause 'because there no constitutional post-conviction

entitlement to counsel. Cole man, C. 755, 501 at 111 U.S. S.Ct. at 2567-68. alleged by Since errors his trial counsel can demonstrate cause Unless Malone impede ability comply did not with the default, Murray prejudice to excuse his 29.15, requirement verification they of Rule Carrier, 478, 488, 477 106 S.Ct. v. U.S. Murray, also are not cause. 477 U.S. at 2645-46, (1986), 397 or a funda L.Ed.2d 2645-46; Lamp, S.Ct. at 122 F.3d at Delo, miscarriage justice, Schlup mental v. . 1105 298, 316, 861-62, 130 513 U.S. 115 S.Ct. (1995), federal review is L.Ed.2d 808 habeas Even if Malone were to show cause to , the final state court to unavailable because default, procedural excuse his he has not clearly expressly review his claims relied prejudice. Any shown actual error Ma independent, adequate procedural rule postconviction lone’s counsel is irrelevant Reed, them. Harris to dismiss U.S. since there is no entitlement at counsel 1038, 1042, 109 S.Ct. 103 L.Ed.2d Coleman, stage. 501 U.S. at (1989); Wainwright v. Sykes, 433 U.S. S.Ct. at 2567-68. Malone asserts that 2497,2506-07, 53 L.Ed.2d 594 prejudiced ineffectiveness of his trial counsel (1977). Malone asserts he can show cause to present mitigating him the failure to evi ways. the default He overcome three dence or to raise all the issues included comply claims he was unable to with Mis petition. duty federal habeas No exists to ill, procedure mentally souri because!he every raise that is avail nonfrivolous issue California, incarcerated in and received inef able, however, at Lamp, F.3d postcon- fective assistance from his trial and prejudiced by hot counsel’s deci Malone was . viction counsel. every claim. sion not to raise conceivable Establishing requires cause a' show mental illness and Califor Malone’s asserted ing impediment of some external that frus prejudice him nia incarceration did not be petitioner’s ability comply trates a with cause he has not shown that interfered they procedural Murray, the state rule. ability comply with his with Rule 29.15 or 488, 106 The record in S.Ct. 2645-46. postconviction Lamp, otherwise seek relief. no that mental this case includes evidence 122 F.3d at 1105. consult, ability illness hindered Malone’s argues proce Malone' also that his pleadings, with file or otherwise comply post- be excused under the requirements with Missouri dural default should miscarriage justice exception. conviction relief so mental illness is not cause fundamental exception, Malone must dem procedural his v. To invoke this to excuse default. Garrett (8th Cir.1996) (con Groose, unavailable at the onstrate that new evidence F.3d his actual innocence of showing incompetence clusive is neces time of trial makes sufficiently likely to con sary). being in California the crime warrant While incarcerated procedurally claims. may filing petition in sideration of his barred have made his Missouri cumbersome, Schlup, at 115 S.Ct. at 861. slightly more Malone has not 513 U.S. generalized we to credit Malone’s any Even were presented such evidence. Malone has claim, to raise appellate counsel the failure in his brief that merely asserts He “Consti- not in itself er- arguments is all conceivable errors, attorney failure to primarily tutional merits. would fail on the ror and the claim sen- caused his death investigate, probably Lamp, 122 at 1106. See F.3d to make out is insufficient tence.” This innocence under of actual gateway claim exacting more standard

Schlup, let alone the B. of actual innocence. claim substantive at least two of Ma- The dissent concludes 317,115 S.Ct. Id procedurally barred lone’s claims are showing of has not made a Because are on the merits. These should succeed innocence, the actual prejudice or cause and prosecution violated Malone’s claims that the post- presented in his unverified claims through racially equal protection right procedurally barred motion are conviction challenges that he peremptory based from further review. of counsel at ineffective assistance received phase by failure to contact his sentencing III. existing family testify or to introduce an report a new one. psychological or obtain A. on if claims could be considered Even these sixty pre the over claims Malone Of merits, they fail. would petition and the in his initial habeas sented appeal, only thirty pursued he has almost prima facie Although Malone made by appel claim of ineffective assistance his by establishing that he is black Batson claim procedurally barred. late counsel is not engaged pattern in a prosecutor and that the procedural has waived the bar jury, Batson v. striking blacks from the apply claim. Malone otherwise to this would Kentucky, 476 U.S. appellate that the failure of his coun states (1986), 1722-23, he failed to 90 L.Ed.2d appeal all those issues to raise on direct sel racially prosecutor’s proffered neu rebut the postconviction in his submissions included Purkett v. for those strikes. tral reasons objective compe standard of was below Elem, 765, 767-69, 115 514 U.S. S.Ct. The district court dis tence for counsel. (1995). 1771, 131 state trial The L.Ed.2d pre it was not this claim because missed rejected this claim court considered and argument or facts to with sufficient sented quash motion to three times: support it. dire, conclusion of voir on his at the new and on remand court’s dis motion for a We affirm district Supreme Court. On remand position argued with no the Missouri of this claim. Claims Sweet, prosecu specifically found that the specificity 125 F.3d at the court are waived. peremp his tor race-neutral reasons for 1159. A claim of ineffective assistance not shown showing per tory strikes and that Malone had requires counsel that deficient pretextual. Review of prejudiced those reasons to be by formance counsel the defen by find this claim is controlled these factual by depriving him of a trial with a dant fair ings presume must to be connect. Washington, which we reliable result. Strickland Purkett, 2254(e)(1); 2052, 2063-64, § 668, 686, 104 514 U.S. at 80 28 S.Ct. U.S.C. (1984). 767-72, also at 1771-72. We have Malone has cited no S.Ct. L.Ed.2d 674 carefully pro appellate nor considered the record specific error conc ceeding agree with the state court’s that the failure to raise has he demonstrated every prejudiced him. lusions.13 conceivable claim Although who prosecutor a white venire member said venire member minister. 13. The stricken, years seminary spent was not had stricken, seven in the Henderson was because she had been robbery, not have the additional charac- none of the he did the victim of an armed .and prosecutor. personally being jurors teristic of familiar to white noted the dissent had prosecutor Sim- said he struck venire member the victim of a violent crime. Venire mem- been Berkeley and the he resided he seemed fa- mons because ber Goode was stricken because experience prosecutor it was prosecutor of a believed from miliar to the and was son

721 Kenley, his counsel State v. also claims law. S.W.2d Malone Missouri (en banc). (Mo.1985) 79, sentencing phase of his in the The facts of the was ineffective family failing contact his about .suggested murder a callous Parr indifference another, a new by fading to obtain testifying and to the life of and heard to introduce an psychological age twenty examination or that at Malone had been evidence report. specif Malone existing psychological multiple involved murders over the course family attorney not to contact ically told his days. testimony-by of-several When Mar causing pain. more to avoid them members family in hearing lone’s a considered have been in the motion, Malone of course would best 29.15 it demonstrated that Rule family position to know how his reacted activity Malone was involved criminal at a law, Missouri rules his troubles with the and young-age consistently dem and that he had responsibility provide that at professional existing onstrated anti-social behavior. His should, regarding to the client torneys “defer psychological report showed that he had par for as ... concern third questions such pressured get other inmates to their food and professional A 1.1. ties Mo.R.P.C. physically guards jail. threatened measure to evaluate guideline is a' relevant background a Such evidence of troubled and Strickland, 466 U.S. performance. counsel’s “by uniformly behavior is no means violent 688, Additionally, at 2064-65. at 104 S.Ct. 793, 776, helpful.” Burger Kemp, v. 483 U.S. postconviction pro- during (1987). 3114, 3125, 107 S.Ct. 97 L.Ed.2d 638 he had ceeding his trial counsel testified that light any mitigating of the whole record prior sister with Malone’s father and talked family up evidence from members about his thought trial and that he he had to the Parr bringing psychological and difficulties would He also had spoken with the mother as well. not have made a different sentence sufficient penalty phase of him the record of before ly likely support an ineffective assistance family which contained the California trial Id. at of counsel claim. at S.Ct. upbringing testimony about Malone’s . 206 8 including his background, violations early age. not to law from an The decision IV. testify mitigation family call members to brought many has claims in Kelvin Malone “strategic recognized as a decision” has been petition, all them this habeas but almost “normally judgment.” to counsel’s that is left properly presented never" to the state Norris, v. 133 F.3d 1998 WL Fretwell courts, Cir.1998) (internal (8th Malone has not shown he can citations *6 procedural omitted). evidence, any exception to excuse the meet" psychological As to the to consideration of"these claims. His bars does indicate that Malone the record single unbarred claim has not been stated suggesting in a manner the need behaved specificity sufficient to be considered. with examination, report existing and his new record, thorough consideration of the After re- potentially damaging evidence contained court. "judgment affirm the of the district we Quentin lating to his misconduct San history. his extensive criminal HEANEY, Judge, dissenting. Circuit appear thus

Counsel’s decisions respectfully I dissent. The all-white range represen fall within the reasonable Malone, 20-year-old tation, Strickland, Kelvin at that convicted U.S. education, Lockhart, 2063-64; grade Hayes 852 black male with a tenth see also v. (8th Cir.1988), Batson Ken empaneled if in violation of but even we F.2d performance tucky, S.Ct. presume attorney’s was defi (1986) equal cient, (holding that prejudice. 90 L.Ed.2d 69 Malone has not shown prosecutor to chal argument protection clause forbids conceded at oral Counsel jurors solely on account of potential aggravating lenge of the four factors least one race). Moreover, valid, was" denied jury was and this is found of counsel at the sentence under effective assistance support sufficient to death a crime. good jurors with the area of idea to have who were familiar 3, 1986, July Each of these Malone’s counsel an phase of his trial. constitu- On filed independent post-eonvietion an basis initial motion for relief under tional errors constitutes (re- corpus, of habeas Supreme for the issuance of a writ Missouri Court Rule 27.26 1988). properly preserved and both for pealed Following issues consultation with reasons, by two this court. For these review appointed new Malone an filed I this case to the district court 13, would remand amended Rule 27.26 motion on March a of with directions to issue writ habeas Twenty-two 1987. claims were raised this corpus ordering state court to vacate motion, including claims that the state used My conviction. un- Malone’s sentence and peremptory challenges its to strike all blacks history dispute, derstanding of the of this as jury from the and that Malone’s counsel was law, controlling well as the is somewhat dif- penalty phase ineffective at the of the trial majority ferent than that of the and is set investigate present failing mitigat- forth below. 30, 1987, ing evidence. On June the state filed a motion to dismiss Malone’s Rule 27.26

I. motion; custody because Malone was in 31,1984, Missouri, an all-white in the California than On March rather a Rule 27.26 County, Circuit Court of St. Louis Missouri motion not lie. did The district court dis- 17, guilty found Kelvin Malone of the March simple motion with missed the words “so Parr, 1981 murder of William a white St. Appeals ordered.” The Missouri Court of Malone, male, affirmed, Louis cab driver. a black was stating preju- that dismissal did not twenty years old the date of the offense. right dice Malone’s to file a motion under the tenth-grade April He had education. On newly adopted long Rule 29.15 so as he filed recommended sentence of 30,1988. on or before June Malone v. death for the offense. After the Missouri (Mo.App.1988). 747 S.W.2d 26, 1984, imposed April court sentence on May On Malone’s counsel filed a California, returned where he post-conviction Rule 29.15 motion for relief remains on death row for a murder he com- asserting essentially the same claims set in that state. mitted forth in his aménded Rule 27.26 motion. On appointed Aylward, The trial court William July Malone’s counsel filed County Defender, Louis St. Assistant Public incorporating by amended Rule 29.15 motion Malpne represent on November May reference all claims raised in the 24th case, begin He did not work on Malone’s stating support motion and additional facts in however, until about two weeks before the Following January some the claims. trial, trial was scheduled to start. Before evidentiary hearing, the motion Aylward with Malone on several occa- talked court each of denied Malone’s claims on the records, police sions and reviewed he but merits. any failed to interview of the witnesses iden- police reports by tified or Malone. He respect to With Malone’s claim Bat- under any did not offer evidence trial. The state son, the motion court stated that Malone was represented two-day at the trial two racially-cognizable group a member of a prosecutors. required by as Batson because his mother was white and his father was black. penalty phase At the the public court prog- stated that neither Batson nor its presented defender no witnesses to humanize eny recognized person explain mixed racial Malone or to the circumstances of his heritage being racially- a member of a leading only life to his crimes. He called one witness, cognizable group. As an additional an academic who basis testified that there decision, the motion court support was no evidence to held that blacks view intentionally death is an were not effective deterrent. Ma- excluded from the jury. unsuccessfully appealed doing, lone so the court his conviction relied on the judge’s report Supreme and sentence to the Court. to the Court of Malone, (Mo.1985) State 694 S.W.2d 723 Missouri that reached the same conclusion. (en banc). court, According findings to the motion . panel equal pro- in violation of his jury- members the entire who witnessed judge rights. The district court considered issue as to tection resolved the procedure selection each claim the motion both excluded from and denied blacks were whether findings the merits and because Malone did not com- state and these in favor of the panel ply requirements. the state verification this issue with further review precluded judicata.14 through res II. Supreme to the Missouri appealed appeal, the state chal- During the Court. 411, Georgia, 498 111 S.Ct. In Ford v. U.S. original time Malone’s the first

lenged for (1991), 850, Supreme 112 935 L.Ed.2d insuffi- 29.15 motions as amended Rule ‘firmly only “that á established Court held 29.15(d) they were because under Rule cient practice’ may be regularly followed state State, Malone v. 798 S.W.2d unverified. See prevent subsequent interposed by a state to banc). (en (Mo.1990) 149, Missouri by this Court of a federal 'constitu- review Court, it was faced stating that Supreme 423-24, 111 tional claim.” Id. at S.Ct. at 857 respect to the incomplete record with an with 341, Kentucky, (quoting v. James with the verification issue Batson claim and 1830, 1835, 80 L.Ed.2d 346 104 S.Ct. ' assistance of regard to ineffective omitted). (1984)) (citation Here, the verifica- trial to to “the court remanded the matter firmly regu- established or tion rule was not evidentiary hearing and deter- conduct larly followed at the time Malone filed complied with the whether [Malone] mine 3, 1986, July initial Rule 27.26 motion on provisions of Rule 29.15 and verification 27.26 motion when he filed his amended Rule impaneled jury was trial [Malone’s] whether 18, 1987, he his initial on March when filed Ken- teachings of Batson v. contrary to- the May or when Rule 29.15 motion on 1712, 90 tucky, 476 U.S. Rule'29.15 motion he filed his amended Antwine, (1986) v. and State L.Ed.2d 21,1988. history of July A the verifica- brief 1987).” (Mo. Id. banc S.W.2d 51 state courts requirement tion the Missouri illustrates this fact. the trial court con January On hearing. to the evidentiary Prior ducted the 11, 1990, the Missouri Su- September On a mo counsel filed ruling, court’s defendant’s post-conviction preme considered Court for the supply verification tion for leave for relief from a motion of James Rodden The court amended motions. original and conviction. Rodden murder . 26, 1990, the request On March denied (en banc). (Mo.1990) S.W.2d mo Rule 29.15 trial court dismissed Malone’s case, pro Rule 27.26 motion filed a se Rodden tion, of his Batson chal ruling on the merits motion conviction. His attacking his murder failure to file a lenge, and held that Rather, signed nor verified. wás neither on or before June properly-verified motion by Lee Rodden signed it “James counsel 30,1988 remaining respect with to the issues according Rodden’s filing, Nation.” The jurisdiction to hear deprived the court of accomplished without his testimony, was matter. The trial court dismissed Malone’s July knowledge or consent. On Supreme the Missouri Court motion and af 27.26 mo- a first amended Rule Rodden filed Malone, 798 S.W.2d at 151. firmed. tion, signed only by Rod- again which was (cid:127) 31, 1989, a second August den’s counsel. On petition for habeas Malone next filed a It, motion was filed. Rule 27.26 In his amended district court. corpus with the federal by Rod- too, nor verified signed neither twenty-three Malone raised some petition, court ruled day, the trial On the same trial counsel ren- den. including that his claims The state on the merits. against Rodden at the ineffective assistance dered Batson, Supreme Court that, argued that under phase of his trial and be- authority review the decision lacked black prosecution improperly struck court, subsequently we have report our but submitted to relied on the 14. The motion court Court, properly report copy item and it is judge of that to Missouri obtained a E5, support finding. whatever rea- part this For of the record. considered as a son, part of the record item E5 was not made cause of the absence verification different from what is usual in civil actions. post-conviction phrases nullity,” motion. The Missouri Su- Such as “a “failed preme agreed jurisdiction” Court to hear the case on the invoke the circuit court’s are simply stating: bootstrapping. merits The Court could perfectly well allow the verification to be pleading, element of a Even an essential supplied pointed when the defect is out. verification, may like added amend be enjoy This would allow the all of Drury Displays, ment. Inc. v. Board of imagined the real or benefits of (Mo. verifica- Adjustment, 760 114-15 S.W.2d tion. 1988). case, banc In this the state went to any objection trial on merits without the pleadings. in the deficiencies The first opinions subject Some of the on this objection pleadings to the was before this suggest requirement that the verification appeal. Any Court on deficiencies in the purpose. an expediting serves I cannot waived,

pleadings pleadings the are expedites proceedings see that it the treated as amended conform with the any way. procedural There will rather be evidence, may state raise lack ping-pong hassles and a match between pleading of verification of the Rule 27.26 courts, state and federal if this movant is appeal. for the first time on obliged pursue posteonvietion other (citations omitted). remedies. Here, Id. at 395 as in Rodden, the lack of verification was raised (Blackmar, C.J., dissenting). Id. at 450-51 appeal, yet for the first time on the state later, Supreme Six months the Missouri inconsistently court dealt with the two cases. State, Court decided v. Sanders 807 S.W.2d Vinson, Two months later in v. State (Mo.1991) (en banc), State, v. Luleff (Mo.1990)(en banc), S.W.2d the Missouri (Mo.1991) (en banc). 807 S.W.2d 495 In again jurisdiction Court considered Sanders, the movant was convicted of mur unverified, amended, over an Rule 29.15 mo- degree der the first and sentenced to court, case, citing tion. The the instant Ma- post-con death. His Rule 29.15 motion for lone, 798 S.W.2d at dismissed the motion viction relief was denied without an eviden- jurisdiction. for want of Chief Justice Black- tiary hearing. pro Sanders filed a se motion dissented, stating: mar post-conviction April relief on 1988. agree juris- I cannot that following day the Court lacked The appointed the court diction to consider the public amended 29.15 mo- office of represent defender to hold, rather, him, I tion. would granted that when the court public and the defend provides postconviction counsel for a motion er’s for additional time within which movant, procure and that counsel fails to an file amended motion. On November , 29, 1988, the movant’s verification on an amended counsel filed addendum to the timely, pro motion is otherwise se motion that was signed which neither nor may Court allow the sup- by verification to be January verified Sanders. On plied at a later time. completed pro counsel filed a se Rule 29.15 signed form that had been and verified

Proceedings under Rule 29.15 are civil. May Sanders back on soon after he It is proceedings uncommon civil to hold pro filed the se motion. The trial court filing papers deprives defective timely dismissed the amendment as not filed. jurisdiction. the Court of The usual reme- court, In reversing the district the Missouri dy permit is to defects to be corrected Supreme Court stated: particular- amendment. The law been has ly 9,1991] intolerant of those today [April make no mention Until who this has Court of a pleading defect until the trial position court not deviated from firm its has disadvantage ruled and then seek to timely failure to file a motion constitutes a opponents by procedural their claims of (cid:127)complete bar to consideration of a mov- 55.33(b). claims, defect. Rule Nothing in text ant’s even when the claims are of Rule 29.15 proceedings entirely indicates that attributable inaction coun- of. sel____ under that rule way are to be treated in a (Mo. August 1989. The motion motion on 807 S.W.2d Luleff September appointed' al- counsel on 1991), today, court this Court' decided banc a new The first counsel withdrew and reflected There the record course. tered appointed. post-conviction no counsel was New took appointed counsel movant’s behalf, timely to file a verified motion. counsel failed on movant’s whatsoever action argued that his effec- comply with White second failing to thereby apparently 29.15(e). by failing tively him to file Rule On provisions of abandoned supreme motion. The court timely movant verified appeared it the record face of withdrawal, failure to file “Counsel’s meaningful review of stated: deprived motion, and failure to veri- timely amended became one question then claims. The facts, raise serious fy allege sufficient in which to address appropriate forum the movant received questions counsel. as to whether claims of abandonment This, representation in the sense of postconviction appropriate forum held the Court emphasis (original 29.15.” Rule Id. court. be the motion omitted). to the motion The court remanded this underlying considerations proceedings consistent with court for further equally are com- holding in Luleff Court’s Sanders. the record re- in this where pelling case that counsel has determined flects (Mo.Ct. Clay, In State v. 817 S.W.2d amending the basis for there is a sound Clay’s counsel first App.1991), David Lee timely to file the motion but fails pro se in an amended Rule raised certain issues by Rule required amended motion timely filed nor 29.15 motion that was not 29.15(f). is, effect, another failure The court verified. The stated: by postconviction form of “abandonment” that the failure to If movant can establish counsel. timely caused the verify and file is emphasis and citations (original at 494-95

Id. counsel; motion of the amended inattention omitted). explicit court then laid down and ruled on. can be filed in future counsel to follow guidelines for eases. fault, verify Clay’s the If failure to. was the may seek leave At time as counsel such nullity is a and the motion motion amended time, shall pleadings the motion file out however, If, the jurisdiction. court has no conclusions, showing facts, not set forth fault, the mo- untimeliness counsel’s was in- Where justification for untimeliness. 29.15 motion as must treat the tion court informed, court is directed sufficiently the And, verify if failure to is timely filed. the the independent inquiry as to to make fault, must take the trial counsel’s .court untimely filing. The burden the cause of amended steps to have the appropriate movant to demonstrate shall be on the properly it invokes so that motion verified negli- the result of untimeliness is not the motion court. jurisdiction of the the movant, conduct of the gence or intentional omitted). (citations Id. at 569 comply failure to is due to counsel’s but 29.15(f). If the court determines

with Rule 821 S.W.2d In Hutchinson negli- untimeliness resulted pro filed a se (Mo.Ct.App.1992), the movant movant, the conduct gence or intentional 28, 1988, contend- on June Rule 29.15 motion filing. permit not Should court shall On counsel was ing that his trial ineffective. timely amended the failure to file counsel, motion 25,1988, appointed the court August counsel,, .the from inattention result motion on Rule 29.15 an unverified who filed filing. permit shall court 28,1988. In case: October omitted). emphasis (original at 495 Id. hearing held on Jan- evidentiary An stated at The motion court Supreme uary year, the Missouri The same that, was limited to hearing its review first-degree murder considered the Court White, pro motion. alleged in the se claims White. State v. conviction of Leamon concerning (en bane). (Mo.1991) testimony was heard Limited .White 813 S.W.2d 862 motion. allegations in the amended post-conviction timely unverified filed a but diction, pro posture. The court denied the se motion and its decisions belie that Moreover, that because the mo- amended as noted Chief Justice Black- concluded unverified, Malone, alleged tion was the claims majority mar’s dissent Rodden, ignored the amended motion were “time barred state court which had been waived.”____ procedurally decided less than one month before. The firmly verification rule not established point appeal, For his sole movant when Malone filed his Rule 27.26 motions nor that the trial contends court erred when he filed his initial amended Rule considering grounds raised in the un- July July 29.15 motions on 1986 and inquir- verified amended motion and in not 1988,respectively. ing into the cause of the failure of the gen- amended motion to be verified. The event, any timely-veri- failure to file a eral rule is that an unverified motion is a fied motion appointed was the fault of his nullity jurisdiction which fails to invoke the counsel, Malone, brings which However, of the trial court. the Missouri Vinson, Sanders, purview within the Lu- applica- Court modified the strict White, leff, Clay, Hutchinson. Malone was a White, tion of this rule in State v. 813 prisoner in ap- California when counsel was (Mo.bane 1991). S.W.2d 862 If a movant pointed represent post-convic- him in the verify can establish that the failure to tion proceeding. Counsel should have been caused the inattention of aware of the requirements verification under amended motion can be filed and ruled on. rules, yet timely failed to take action to ... must remand to [W]e the motion court requirement have that fulfilled. With re- for a determination of the cause of lack spect motion, to the Rule 29.15 of verification. The motion court must explained procedural counsel the reasons inquiry make a factual into the cause of the why motion, Malone had file a new but did by holding evidentiary violations an hear- not remember whether she him informed or, ing undisputed, if the facts are that the new form had to be verified. Ma- examining the record. The court must expected lone that his counsel would file a findings make of fact question on the of proper Rule 29.15 motion on his behalf. Be- verify whether the failure to results from filing tween the time of original the of the negligence or intentional conduct of prior Rule motion filing 29.15 and to the of movant or from the inattention of counsel. motion, attorney Malone’s amended an re- fault, If verify the failure to was movant’s viewed the file and noticed that the initial nullity the amended motion ais and the Rule 29.15 motion had not been verified. He If, jurisdiction. motion court has no how- immediately sent form to Malone in new. ever, fault, the untimeliness was counsel’s During September California. of week appropriate motion court must take verified, lawyer found steps to have the amended motion verified motion, signed copy of the Rule 29.15 nota- properly jurisdiction so that it invokes the day- July, rized the 12th of 1988 and If, of the motion court. as a result of the postmarked 25,1988. July the amended mo- n findings, court’s motion verify Counsel’s failures are not to be verified, tion is filed and the motion court treated under the rubric of ineffective assis- proceed should then allega- review the post-conviction tance of but rather tions of the motion. as an abandonment of counsel. The fact that (citations omitted). Id. at 917-18 Supreme the Missouri Court in 1991 set forth A careful review of the guidelines above-cited cases for counsel to follow in future leads to the conclusion that support the state’s verifi- cases hot does the state’s view that firmly cation rule was neither firmly established nor the verification rule was established regularly Supreme when the regularly followed Court and followed at the time that Ma- of Missouri the trial affirmed court’s dismiss- lone’s motions the cited filed. cases al of Malone’s Rule Supreme 29.15 motion for lack of the Missouri Court remanded to verification. Although Supreme the Missouri the motion court to determine whether the regularly Court language juris- used the of lay fault for lack of verification with the Here, cog- a member of a was black and therefore movant’s counsel. or with the movant court- also found group. racial The lay with nizable the fault clear that the record per- nine view, state utilized three of its Thus, that the my lack counsel, not Malone. emptory to remove blacks from the strikes procedural not constitute does of verification panel one of its two strikes jury in this ease. state law under default potential black al- pool-to alternate strike a ternate, III. an all- leaving Malone to be tried prosecu- jury. court -directed the white quash counsel moved Defense striking the explain his tor to reasons for a dire and of voir panel at the conclusion venire: four black members the defendant’s post-verdict because mistrial Simmons, Henderson, Grooms,- and Goode. by the rights were violated protection equal prosecutor outlined his the first time the For exclusion attorney’s intentional prosecuting making disputed strikes. He reasons for jury panel. of the members of all four black because she was stated he struck Henderson no race-neu- prosecutor offered Although the robbery years victim of an armed few time of at the explanation for the strikes tral person charged in which no was ever before trial,15 the mo- nonetheless denied the court He stated that he struck with the offense. tions.16 objection stated his because he Grooms trial, in the Batson issue Malone raised because he indicated death to vacate his sen- amended motion his first attempt to convince others of his he would Rule 27.26 dated Supreme Court tence under prosecutor defended, his strike of view. The 29.15 motion in his Rule March in Berke- because Simmons resided Simmons in his first amended May dated ley. Finally, that he struck Goode he stated July filed on Rule 29.15 motion because he because he looked familiar and Court, appeal The Missouri pastor of a minister or was the son of Malone’s Rule 29.15 trial court’s denial prosecutor church. The court found motion, the ease to the explicitly remanded rational, credible, explana- neutral provided evidentiary hearing court to conduct peremptory questioned tions for each Malone’s trial whether and determine actions were and that the state’s strikes contrary teaching to the impaneled com- properly based on verbal and nonverbal Malone, 798 S.W.2d and Antwine. Batson prosecu- jurors from and on the munications at 150. Finally, experiences. the previous tor’s remand, to show that Malone had failed the trial court conducted court found On pretextual. explanations were that Ma- that the stated evidentiary hearing and determined over Supreme Court affirmed case under The Missouri prima a facie lone established Blackmar’s dissent. that Malone Chief Justice The trial court found Batson. solely longer to then no limited post-verdict The record is response motion In to Malone’s trial, peremp- prosecutor quash proof a new the state has used his the and for that the to responded jurors that Mr. Malone was not black. tory challenges all black to strike expressed Malone could not the view that presump- jury panel, and the the' defendant’s jurors challenge of black because the exclusion properly prosecutor has acted that the tion race, being a the child of white was of mixed he mother and black duty point, away. has a At that the court falls a father. challenges prosecutor's satisfy that the to itself constitutionally permissible tri- were based on appeal was still in the instant case 16. A direct considerations, prof- and that the al-related however, Batson was decid pending, at the time ones, merely genuine are and not fered reasons Thus, appropriate one test is the ed. the Batson pretext for discrimination. a time howev apply in this case. At the of Id. at 511. er, challenges peremptory prosecutor's of the use Here, response was not that Malone the state’s Alabama, v. was covered Swain every phase only disputed is not black (1965). In Garrett 13 L.Ed.2d.759 Garrett, statement, record, as in 1987), hut this noted Morris, (8th we held Cir. v. 815 F.2d satisfy that the chal- required itself completely the court to does not that the decision Swain constitutionally-permissi- peremptory lenges prosecutor’s chal were based on use of insulate lenges ble, prosecutor given where the in a case considerations. trial-related his actions and makes the reasons for volunteers part the record. them of clause, though Supreme equal protection denied the even oth the Missouri Court After part seated, relief, jurors as are when raised his Batson claim er black and even striking federal petition for habeas relief there are valid reasons for the relief, Battle, jurors.” court. hold- The court denied some black United States v. district Cir.1987) (8th (citing claim in ing Malone had defaulted the 836 F.2d Gordon, 1538, 1541 the of his Rule v. light of state court’s dismissal United States F.2d (11th alternative, Cir.1987); David, 29.15 motion. In the the district and United States v. (11th 1567, 1571 Cir.1986)). Thus, on the court Malone’s Batson claims denied 803 F.2d prosecutor’s single, improperly-stricken juror It concluded that the merits. constitutes pro- striking granting for each of the black reasons a basis for new trial. jurors racially spective were neutral their with agree I the district court that rejected argument face. The court prosecutor for stated race-neutral reason proffered striking for that the state’s reasons challenging Kenneth Grooms. Grooms stat- panel and Goode from the venire Henderson during opposed ed voir dire that he the death pretextual. respect venireper- were With Moreover, penalty. I find no evidence Simmons, court also sons Grooms prosecutor’s for strik- record reason that, made no at- concluded because Malone however, pretextual. note, ing Grooms was I persuade prose- tempt the court that the support is no there the record pre- striking cutor’s reasons for them were prosecutor’s statement that indicated Grooms textual, he was not entitled to habeas relief. attempt jurors he would convince other matter, initial As an because the Missouri his view. court, court, post-conviction the state contrast, In the district court’s decision Supreme Missouri have and the Court all peremptory challenges sustain the state’s merits, the Batson considered issue on fairly sup- Henderson and Simmons is not habeas court the same. federal should do ported by prosecutor the record. The testi- alternative, assuming the Batson post-convietion hearing fied at Malone’s not but claim was denied on the merits be- he struck Kim Henderson she had because Malone’s Rule 29.15 was unver- cause motion of an robbery been the victim armed ified, claim have been nonetheless should charged and no had been one in the offense. by the court considered federal habeas it In this circuit is well that a established because, discussed,previously, the merits litigant may justify peremptory chal- requirements firmly the verification lenges to a venireman of one race unless regularly when established followed comparable veniremen another race with Court Malone. decided challenged. or similar characteristics are also prima Malone established a case un- facie Harris, (8th Davidson v. 30 F.3d concedes, der Batson. As the state now Cir.1994); Caspari, Walton 916 F.2d Moreover, prosecutor is black.17 Malone the (8th Cir.1990); Morris, 1361-62 Garrett struck all four blacks who remained the (8th Cir.1987). In 815 F.2d 513-14 oth- thirty-four-person jury panel all after other words, er can establish that an other- panel successfully members had been either explanation pretextual by wise neutral is for challenged cause or for other excused showing that the a stricken characteristics óf

reasons. panel black member are white shared I consider government panel next whether the who Ac- members are not stricken. prose- race-neutral peremptorily cording transcript, offered reasons for to the voir dire the challenging thirty-four- panel all four blacks on the cutor to strike failed several white person venire from which was se- members who also had been of rob- victims “[Ujnder Batson, striking burglaries lected. of a in beries or which no one had juror single for charged black racial reasons violates been for the includ- offense. These overwhelmingly supports points proceedings, 17. The record this fact ous in Malone’s state such as every point race. At he in reported when the trial court that Malone was was referred to as a black man. difficult to It is "an Asiatic-Moorish-American.” question understand confusion of this at vari- (house any in at voir broken into statement dire is sufficient to Bush ed Gerald J. 1977; face, charged), pretextuality. Kenneth G. Hrebec raise the its no one issue On (father’s three grocery store robbed two or prosecutor’s I do not believe that the reason trial), years before Janet I. times over ten given neutral the concentration of race (home into three or four Pettigrew broken persons living Berkeley. of color More- trial), Hopkips B. years and Minnie before over, proffered if the reason even were con- (home years into twice ten before broken neutral, race Malone has sidered established trial). prosecutor specifically did not The pretextual light it that was the fact that the fact that no one ask Henderson whether quéstions no Simmons asked relevant affect charged had been her case would ho information volunteered relevant contrary, Malone’s case. To the her view of support prosecution’s position. asked, along with other members of the when Finally, I am that the district convinced panel, fact that she or her whether in sustaining peremp- court erred the state’s crime victims friends or relatives had been tory challenge pros- to alternate Goode. The prevent being her from a fair and would ecutor stated that he struck Goode because case, juror impartial in this Henderson did he looked familiar to him and because he was any prob- would have not indicate that she pastor the'son of a minister or of a church. Therefore, despite proffer the state’s lems. scrutiny. Neither reason withstands The excluding of a race-neutral reason prosecutor colloquy between the and Goode jury, the record demon- Henderson was as follows: pretextual. I thus strates that the reason .... MR. McCULLOCH: Mr. Goode— prosecutor it clear that the violated believe here, sitting I don’t know—-while I’ve been Batson and Malone’s rights' constitutional you very Do I look familiar to me. look jury. when he excluded Henderson from the you? you you familiar to think Do know prosecutor The claimed that he struck me at all? Berkeley, Simmons based on address Not off VENIREMAN GOODE: hand. Berkeley, that the occurred in murder MR. You for the work persons Berkeley, McCULLOCH: Malone had ties to Postal Service? that some of the trial witnesses were friends accepted court these of Malone. district Right. VENIREMAN GOODE: The court also stat- reasons as race neutral. you MR. McCULLOCH: Are a letter pros- argue that Malone failed to ed carrier? pretextual. disagree I ecutor’s reason was VENIREMAN GOODE: No. A truck dire, pros- voir with both conclusions. At driver. single ques- ecutor did ask Simmons Well, Okay. MR. McCULLOCH: lived, tion, about questions let alone where he Ferguson in the be it. You live wouldn’t area, Berkeley the extent of his ties to the area? acquainted any whether he was with No. Floris- VENIREMAN GOODE: until potential witnesses. It was not sant. post-conviction hearing prosecutor MR. McCULLOCH: Florissant? that he advanced the claim struck Simmons Yet, for the reasons stated above. he failed GOODE: Um-hum. VENIREMAN post-conviction hearing develop any at the it, That could be MR. McCULLOCH: reasonably testimony support that could event, any I from the Florissant area. might belief that Simmons be influenced you, I? look too familiar to do You don’t any way by that he in the area the fact lived you think know don’t me? Moreover, I where the murder occurred. No, I GOODE: don’t. VENIREMAN accept cannot the court’s assertion district Later, Id. at 223-24. ques- Malone’s counsel that Malone is without recourse because he tioned Goode as follows: argue by failed to that the reason advanced Goode, Okay. Mr. do AYLWARD: MR. prosecutor post-conviction hearing the at the you any church or— attend pretextual. prosecutor’s was That the ratio- Yes, entirely MR. GOODE: I do. unsupported nale was ad hoc and 730 you regu- independently reweighs Do attend the

MR. AYLWARD: evidence—would aggrava have of larly? concluded the balance ting mitigating circumstances did not dad, My he’s a MR. Yeah. GOODE: warrant Id. at 104 death.” S.Ct. at pastor. Always, inquiry 2069. the ultimate focus of colloquy apparent Id. at from the 238. It must be on the fundamental fairness of the prosecutor had little no basis for the ¡proceeding whose result the chal defendant and, case, any familiarity; his claim of the 696, 104 lenges. at Id. S.Ct. 2069. develop suggest the record to state did not case, penalty obligat In a death counsel is adversely any familiarity might how affect possible ed to collect as much information as ability jury. to sit on the As to the Goode’s defendant, about the for use at the reason, has established that it second Lockhart, phase. Hill v. 28 F.3d 845 Bush, pretextual was because Gerald J. the (8th Cir.1994). This is so because the sen foreman, jury spent years seven in the tencing par battle must be one between the ministry challenged and he was not the par ticularized nature of the crime and the prosecutor.18

ticularized characteristics of the individual Carolina, defendant. v. North Woodson 428 IV. 280, 303, 2978, 2990-91, U.S. 96 S.Ct. corpus In both his state and federal habeas (1976) (holding L.Ed.2d 944 unconstitutional petitions Malone claimed that his coun- first-degree-murder a state statute car provided pen- sel ineffective assistance at the sentence); automatic ried death see also Ed alty phase by failing investigate his trial Oklahoma, 104, 112, dings v. 455 U.S. present mitigating Specifical- evidence. 869, 875-76, (1982); S.Ct. 71 L.Ed.2d Lock ly, Malone claims that his trial counsel failed Ohio, 586, 605, ett v. family to interview or call his members failed (1978). 2965, 57 L.Ed.2d 973 As the Su psychologically to have Malone evaluated or preme Court has stated: present psy- available evidence of Malone’s capital respect cases the fundamental [I]n chological history. Although the district humanity underlying Eighth the court concluded that Malone’s counsel ren- requires Amendment consideration of the assistance, disagree. dered effective I character and record the individual of- To succeed on his claim of ineffective assis- particu- fender and the circumstances of a (1) tance of Malone must show that constitutionally indispens- lar offense as a performance professionally his counsel’s was part process able of the inflicting circumstances, unreasonable under all the penalty of death. (2) probability that there is a reasonable Woodson, 428 U.S. at at 2991 S.Ct. that, error, unprofessional but for counsel’s (internal omitted). citation proceeding result would have been Washington, circumstances, different. Strickland v. all jury Under U.S. given S.Ct. 80 Malone’s trial was no sense of the (1984). person L.Ed.2d 674 “When a guilt phase defendant he was. At the of Ma- challenges ... ques- a death lone’s returned its sentence^] verdict at proba- p.m. Friday, tion is whether there is reasonable 11:00 March 1984. De- that, errors, bility spite absent the the senteneer— the late hour and the fact that the next court, including appellate day Saturday, penalty phase to the extent it addition, Bush stated that his home had VENIREMAN BUSH: Yes. prose- been broken into in 1971 and no one your family MR. And AYLWARD: as well? following cuted. Bush revealed the at voir dire: VENIREMAN BUSH: Yes. you any MR. AYLWARD: Are affiliated with According prosecutor’s Id. at 137-38. to the religious group? testimony, justified a similar incident the exclu- degree, yes. VENIREMAN BUSH: To certain Thus, jury. sion of Henderson from the spent approximately years I seven in the minis- male, foreperson, possessed a white two of try. allegedly unacceptable by pros- traits deemed the you MR. AYLWARD: Do attend church at this ecution. time? accepted govern- of March The district court the began morning 9:30 on the trial at proceeding including argument the The entire ment’s that counsel’s decision not 31. — punish- appropriate jury’s on the family strategic deliberation to call members was a one was only four hours. Malone ment —lasted prompted primarily by expressed Malone’s penalty phase of present during the not even preference put family through not to his first, trial, only having to attend. The refused painful process again. prong Under the evidence submitted Strickland, additional particular a decision not to prior Malone’s convictions and sen- investigate is assessed for reasonableness un- prosecutor which the tences from California heavy der the circumstances and a measure jury to from certified court records. read applies judgments. of deference to counsel’s 691,104 at at S.Ct. 2066-67. Under presented just part, its the defense For however, circumstances, it was unreason- professor a St. Louis one- witness: from completely able for expert counsel to abdicate his University general, who offered his duty investigate opinion not an to and to understand the that the death was very asking jury spare. to crime. Malone’s trial life he effective deterrent personalize, performance readily counsel offered no evidence to His distinguishable humanize, eyes Malone in the of.the Strickland as examples or even cited present jury. investigate He did not or evi- circumstances which limited or nonexistent family, upbringing, Malone’s his dence about investigation might be reasonable: educational, social, psychological, or or his [Wjhen support facts a certain fact, physical history. although potential line of generally defense are jury counsel' asked the to find that Malone’s known to counsel because of what' defen- age mitigat- the time of the offense was a said, dant has the need for further investi- factor, ing he never even told the how gation may considerably be diminished or . Malone old was.19 altogether. eliminated And when a defen- Testimony developed during the state given dant has counsel reason to believe post-conviction proceedings reveals Ma- pursuing investigations certain would lawyer nothing investigate lone’s did harmful, fruitless or even counsel’s be fail- develop mitigating preparation evidence pursue investigations may ure to those for trial. His conversations with Malone challenged later be as unreasonable. were so limited that trial counsel did Id. Malone and his lawyer barely commu- even know that Malone had two children. trial, prior nicated until two weeks lawyer speak Malone’s failed to to either of point primarily which counsel focused parents, both whom later stated for the phase preparing guilt for the of the trial they readily record that would have testified reports prepared by reviewing investigative they during on their son’s behalf as did Thus, lawyer Malone’s knew the state. request two California trials.20 He did not very might little about what he find if he psychological evaluation of his client nor did invéstigated personal history. It psychological profiles he review the extensive that, knowing follows without what informa- developed on his client for the California family provide record, tion Malone’s could the de- proceedings. According Ayl- to the fense, it was unreasonable for counsel to specific preparations ward made no for the family penalty phase use Malone’s reluctance to cause his other than to contact one aca- pain justification doing for not religious expert capital demic and one punishment. developing picture work involved solely physical just twenty years ap- turned old at of the offense based on his By the time the offense. the time of this pearance at trial. twenty-three years Malone was old spent part preceding and had the better that, while she 20. Malone’s mother testified Quentin years doing three "hard time” at San temporarily from knew her son had been moved Prison. The record also indicates that Malone Missouri, unaware that he she was California Thus, had a beard at the time of trial. it would capital standing murder trial in Missouri expect been have unreasonable his conviction and sentence. until well after young intuit that Malone was man at the time history. years was about ten and Without and the second when he character Malone’s information, parents many Ma- necessary background old. Malone’s attributed of position in to advise no problems lone’s counsel social Malone’s academic and importance mitigating Rath, on the Malone injuries. Craig Dr. a clini- these head the likelihood that his fami- and on evidence psychologist during pen- cal who testified It seems ly’s testimony might save life. alty phase of Malone’s trial in Bernardi- San performance during the clear that counsel’s no, California, disagreed. spent Dr. Rath unrea- penalty phase of Malone’s trial was least nine hours with Malone over several sonably deficient. California, was detained in visits while he tests, psychological respect prong the second of administered and re- With Strickland, prejudice as approximately sixty-four Malone suffered a re- viewed defense performance. ports result his counsel’s deficient persons of based on interviews with in had twice stood trial for information, Because Malone past. Malone’s Based that California, capital his Missouri murder positively diagnosed'Malone Dr. Rath hav- wealth of information trial counsel had a ing suffered from untreated attention deficit picture of from which he could have drawn (ADD) disorder as a child and with residual jury. Malone for the But for counsel’s fail- personality ADD and antisocial disorder ures, jury follow- would have learned the explained Dr. Rath since adulthood. friends, family, ing information from his edu- ADD, type hyperactivity residual cators, psychologists: diagnosing and Malone goes characterizes childhood behavior often a mixed-race son of a mother and a is white away problems impulsivity, but with atten- black father. He is the third child and oldest span organizational tion skills remain. boy family in a of seven children. Malone that, Dr. Rath also determined because Ma- ages who were also the father of two children lone’s ADD was the result of a small amount his trial. His one and four at the time of organic damage, brain the roots of his military kept father’s career in the until 1971 problems partially are nonvolitional. Dr. periods during family long him from the diagnosis Rath’s is corroborated the less- family most of Malone’s childhood and Jones, report detailed 1982 of Dr. William in- frequent moved often. These relocations psychologist another clinical licensed Cali- terrupted his and exacerbated his education fornia. Dr. Williams examined Malone and disciplinary problems. Al- academic history that he found head trauma Point, though variously lived West underlying and “weak indications of neuro- York; Texas; Court, Wursbury, New Fort logical dysfunction.” Louis, Missouri; Germany; St. and Honolu- lu, Hawaii, acknowledge I consistent While none of this most childhood . Seaside, city personal history home was the information about California Malone’s during any which suffered racial tension required would have to find intense youth. constantly statutory He was mitigating beyond teased circumstance background doubt, for his mixed-race and had diffi- reasonable the fundamental fairness culty finding acceptance with the white penalty-phase either proceedings must be community Strickland, burgeoning vrith black questioned. See 466 U.S. at power movement. Malone’s small size and I S.Ct. 2069. am convinced of the physical frail condition also made him a tar- that, probability reasonable had the get dropped for constant ridicule. Malone apprised history, been of Malone’s it would grade. siblings out of school in the His tenth aggrava have concluded that the balance of universally and schoolmates him as described ting mitigating circumstances did not loner, unpopular, hyperactive, and a child 695, 104 warrant Id. at death. S.Ct. at 2068- easily manipulated who was and bossed around. resulting Kelvin had several falls and head V.

injuries required as a child. Two of them Therefore, overnight stays hospital, I the first when would reverse the district approximately eighteen corpus he was months old court’s denial of habeas relief for two which, reasons, for the reasons I have both

discussed, properly preserved for our First, impaneled

review. prosecution’s in-

violation Batson and

tentional, racially-motivated all exclusion of panel

black members of the venire violated Second, equal protection rights. the effective assistance of

Malone was denied phase of his trial.

counsel at the consti-

Each of these constitutional errors independent issuance of

tutes basis corpus.

a writ of I have examined habeas

each of the other claims error Malone’s

petition agree with the district court and majority justify that none of them relief.

I would remand the case to the court district corpus

with orders to issue a writ of habeas

directing the state court to vacate Malone’s

sentence and conviction. TODD, Appellee,

Lori A. Plaintiff — BIOTECH, INC.,

ORTHO Defendant-

Appellant. 97-1126,

Nos. 97-1220. Appeals,

United States Court

Eighth Circuit. 20, 1997.

Submitted Oct.

Decided March

Case Details

Case Name: Kelvin Malone v. Daniel Vasquez, Warden, San Quentin State Prison Jeremiah W. (Jay) Nixon, Missouri Attorney General

Court Name: Court of Appeals for the Eighth Circuit

Date Published: May 11, 1998

Citation: 138 F.3d 711

Docket Number: 96-1613

Court Abbreviation: 8th Cir.