Parkus v. Bowersox

• Decision Date: 21 December 1998
• Docket Number: No. 97-1983,97-1983
• Parties: Steven Wesley PARKUS, Appellant, v. Michael BOWERSOX, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1136

157 F.3d 1136

Steven Wesley PARKUS, Appellant, v. Michael BOWERSOX, Appellee.

No. 97-1983.

United States Court of Appeals,

Eighth Circuit.

Submitted April 17, 1998.

Decided Oct. 5, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Dec.

21, 1998. ^*

Sean D. O'Brien, Kansas City, MO, argued, for Appellant.

Stephen D. Hawke, Asst.Atty.Gen., Jefferson City, Mo, argued, for Appellee.

Before FAGG, WOLLMAN, and HANSEN, Circuit Judges.

WOLLMAN, Circuit Judge.

Steven W. Parkus, a Missouri inmate sentenced to death, appeals from the district court's ¹ denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We affirm.

I.

Parkus was found guilty of first degree murder for the strangulation death of Mark Steffenhagen. The details of the crime were set forth by the Missouri Supreme Court in its opinion affirming the conviction and sentence on direct appeal. See State v. Parkus, 753 S.W.2d 881 (Mo.1988) (en banc), cert. denied, 488 U.S. 900, 109 S.Ct. 248, 102 L.Ed.2d 237 (1988), and we summarize them here.

On November 24, 1985, Parkus and Steffenhagen were inmates in the Missouri State Penitentiary, where they were confined in Housing Unit 2-B, a unit for prisoners who were considered in need of protective custody. Parkus was housed in the unit because his small physical stature made him a target for sexual abuse by other inmates. Steffenhagen, who was also slight of stature, was likewise housed in the unit for protection from abuse. That evening, Parkus entered Steffenhagen's cell. Using strips of bedding, Parkus restrained Steffenhagen and then, possibly while engaging in anal intercourse, strangled him. Steffenhagen's autopsy revealed facial cuts and abrasions suggesting that he had been hit with a blunt object such as a fist. Additionally, bruising on his extremities indicated that he had struggled against his restraint, while bruises on his neck and internal damage to his larynx revealed that strangulation was the cause of his death.

Parkus was represented at trial by Donald Catlett. Although having never before represented a defendant in a capital case, Catlett was an experienced public defender who had represented several defendants with mental problems. Shortly after he was appointed, Catlett determined that Parkus's mental capacity would be a key to his defense in light of the fact that Parkus had spent most of his life in Missouri penal and mental institutions. Catlett then started to investigate Parkus's long psychological history by attempting to track down records from numerous facilities within several Missouri state agencies and private entities. The typical response he received was that the records had either been destroyed or were not kept.

Catlett also sought mental health records from Malcolm Bliss Hospital and was told that that facility had no records of Parkus's ever having been a patient there. The record is unclear whether Catlett was aware that Parkus had spent a considerable period of his youth in mental treatment at St. Louis State Hospital, a different facility. Catlett's testimony suggests, however, that he contacted Malcolm Bliss under the mistaken assumption that St. Louis State Hospital and Malcolm Bliss were the same facility.

At trial, much of Parkus's defense centered on the theory that he lacked the ability to deliberate upon the crime, an essential mental element required for first degree murder under Missouri law. ² Although he did not himself testify, Parkus called as a witness his brother Chester, also a state prisoner, who testified that Parkus had been physically and sexually abused by their parents and by an uncle. He also testified that Parkus was the frequent victim of sexual abuse during his incarceration.

Two psychiatrists testified regarding Parkus's mental condition. Dr. Mahindra Jayaratna, the state's expert, testified that Parkus did not have a mental disease or defect and that he was able to conform his behavior to the requirements of law, including the ability to deliberate. Dr. A.E. Daniel, who was called by Parkus, although agreeing with Jayaratna that Parkus suffered from no mental disease or defect, opined that Parkus suffered from a diminished mental capacity that prevented him from deliberating upon the murder. ³

The jury rejected Parkus's diminished mental capacity defense and convicted him of first degree murder. During the penalty phase of trial, Parkus presented additional testimony regarding his mental capacity, including that of two inmates, who related that Parkus had been sexually abused in prison and that he had become more violent as he tried to survive. Dr. Daniel reiterated his prior testimony and further testified that Parkus had a low IQ and was borderline mentally retarded. Dr. Jayaratna reiterated his conclusion that Parkus had the ability to deliberate before the killing. After finding that Parkus's prior convictions for assault and rape, his incarceration at the time of the murder, and the victim's inmate status were aggravating circumstances, the jury sentenced him to death.

As indicated earlier, the Missouri Supreme Court affirmed Parkus's conviction on direct appeal. It later affirmed the denial of Parkus's petition for post-conviction relief under Mo. S.Ct. R. 29.15. See Parkus v. State, 781 S.W.2d 545 (Mo.1989) (en banc), cert. denied, 495 U.S. 940, 110 S.Ct. 2194, 109 L.Ed.2d 522 (1990). Parkus then simultaneously filed for both federal habeas relief under 28 U.S.C. § 2254 and state habeas relief under Mo. S.Ct. R. 91. The Missouri Supreme Court, in a summary order, denied Parkus's petition for state habeas relief. The district court, after denying Parkus an evidentiary hearing on his federal habeas petition, denied the petition, finding that Parkus's claims were either procedurally barred or without merit. Contending, inter alia, that he was entitled to an evidentiary hearing, Parkus appealed the district court's decision to this court. We reversed and remanded the cause for an evidentiary hearing and a ruling on Parkus's ineffective assistance of counsel and prosecutorial misconduct claims. See Parkus v. Delo, 33 F.3d 933, 942 (8th Cir.1994).

On remand, the district court held an evidentiary hearing and again denied the petition. Parkus sought to appeal. Pursuant to 28 U.S.C. § 2253(c)(3), we granted him a certificate of appealability on the issue of whether his trial counsel had rendered ineffective assistance by failing to obtain his medical records from St. Louis State Hospital. ⁴

II.

Parkus contends he was denied effective assistance of counsel during both the guilt and penalty phases of his trial. This claim, which presents mixed questions of law and fact, is reviewed de novo. See Reese v. Delo, 94 F.3d 1177, 1181 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 2421, 138 L.Ed.2d 185 (1997). The district court's factual findings, however, are reviewed for clear error. See Laws v. Armontrout, 863 F.2d 1377, 1381 (8th Cir.1988) (en banc).

The governing standard for Parkus's ineffective assistance of counsel claim is clearly established:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Six v. Delo, 94 F.3d 469, 473 (8th Cir.1996), cert. denied, Six v. Bowersox, --- U.S. ----, 117 S.Ct. 2418, 138 L.Ed.2d 182 (1997); Sidebottom v. Delo, 46 F.3d 744, 752 (8th Cir.1995). To prevail, Parkus must satisfy both prongs of the Strickland test. See 466 U.S. at 687, 104 S.Ct. 2052. We need not address both components of the Strickland inquiry if the defendant makes an insufficient showing on one. See id. at 697, 104 S.Ct. 2052.

Our consideration of Parkus's claim of ineffective assistance of counsel is guided by the principle that "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. This deferential standard of review arises from the presumption that an attorney's performance is reasonable:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)); see Fretwell v. Norris, 133 F.3d 621, 624 (8th Cir.1998).

Parkus asserts that it was unreasonable for Catlett to seek his treatment records at Malcolm Bliss Hospital and thereafter fail to further investigate whether St. Louis State Hospital was a different facility. In support of this contention, he contends that both Dr. Jayaratna and Dr. Daniels, each having now had the opportunity to review Parkus's treatment records from St. Louis State Hospital, have changed their opinions regarding Parkus's mental state at the time of the murder. Parkus maintains that the gravity of the error resulting from his counsel's alleged lack of diligence is irrefutable evidence of an inadequate investigation.

This argument is inconsistent with Strickland. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct...