Bucklew v. Luebbers

• Decision Date: 30 January 2006
• Docket Number: No. 03-3721.,03-3721.
• Citation: 436 F.3d 1010
• Parties: Russell BUCKLEW, Appellant, v. Al LUEBBERS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

436 F.3d 1010

Russell BUCKLEW, Appellant, v. Al LUEBBERS, Appellee.

No. 03-3721.

United States Court of Appeals, Eighth Circuit.

Submitted: May 12, 2005.

Filed: January 30, 2006.

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Cheryl Ann Pilate, argued, Kansas City, MO (Charles M. Rogers and Jeremy S. Weis, on the brief), for appellant.

Stephen D. Hawke, argued, Asst. Atty. Gen., Jefferson City, MO, for appellee.

Before LOKEN, Chief Judge, HANSEN and MELLOY, Circuit Judges.

HANSEN, Circuit Judge.

Russell Bucklew was convicted in Missouri state court of capital murder and sentenced to death. He appeals the district court's¹ denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We affirm.

I.

We recite the facts of the crime as found by the Supreme Court of Missouri. See State v. Bucklew, 973 S.W.2d 83, 86-87 (Mo.1998) (en banc) (affirming Bucklew's convictions and sentences on direct appeal), cert. denied, 525 U.S. 1082, 119 S.Ct. 826, 142 L.Ed.2d 683 (1999); Bucklew v. State, 38 S.W.3d 395, 397(Mo.) (en banc) (affirming the denial of postconviction relief), cert. denied, 534 U.S. 964, 122 S.Ct. 374, 151 L.Ed.2d 284 (2001). Bucklew began living with his girlfriend, Stephanie Ray, and her children in the spring of 1995. In early 1996, they moved into a trailer together. In February 1996, Ray ended their relationship, and Bucklew moved into his parents' home. On March 6, 1996, Bucklew returned to the trailer that he and Ray had shared, where Ray was still living, and found Michael Sanders there. Upon concluding that Ray and Sanders were romantically involved, Bucklew put a knife to Sanders' throat and threatened to kill him. Later that evening, Bucklew found Ray and threatened her with a knife, cut her jaw, and punched her in the face. Bucklew called Ray at work the next day and vowed he would kill her, Sanders, and her children if he found them together again. Ray felt it was unsafe to return to her home, so she and her children moved into Sanders' trailer.

During the night of March 20, 1996, Bucklew stole his nephew's car and left with two pistols, two sets of handcuffs, and a roll of duct tape. The next day, he surreptitiously followed Ray as she left work, ran errands, and returned to Sanders' trailer. Bucklew waited some time in the car before knocking on the door. Sanders saw Bucklew through a window. Sanders took the children to a back bedroom and retrieved a shotgun. Bucklew entered the trailer with a pistol in each hand. When he saw Sanders emerge with a shotgun, Bucklew yelled, "Get down!" and shot Sanders twice. One bullet pierced Sanders' lung. Bucklew then fired at Sanders' six-year-old son, but missed. Ray stepped in front of Sanders, who had slumped against a wall and lay bleeding to death. Bucklew ordered Ray to drop to her knees, and when she hesitated, he struck her in the face with a pistol. He then handcuffed her, dragged her to the car, and drove away with her. Bucklew demanded sex from her in the car, and when she did not perform every act demanded he raped her in the back seat. The highway patrol finally stopped the car and apprehended Bucklew, but a trooper and Bucklew were both wounded in the process. Sanders died of his injuries.

The State charged Bucklew with first-degree murder, kidnapping, first-degree burglary, forcible rape, and armed criminal action, and sought the death penalty. At trial, Bucklew, represented by a team of two experienced defense attorneys, proceeded on a theory of lack of deliberation, i.e., that he was despondent over his broken relationship with Ray and his medical condition,² and that he acted out of a sudden passion when Sanders came out of the back room with a shotgun. The jury convicted Bucklew on all counts.

At the penalty phase of trial, the State presented evidence of Bucklew's dangerousness-specifically, his extensive criminal history including prior convictions for trespass, assault, burglary, stealing, driving while intoxicated, possession of marijuana, grand theft, assaulting past girlfriends, and escape from jail prior to trial, during which he attacked Ray's mother and her mother's fiancé with a hammer. The State also presented evidence of the impact of the murder upon the victim's family, including his young sons, as described by Sanders' mother. On cross-examination of the State's witnesses, defense counsel elicited from Ray that Bucklew had been good to her and her children in the past, and Bucklew's ex-wife said that he was a great father to their son.

Bucklew's counsel presented the testimony of Dr. Bruce Harry, M.D., a psychiatrist, who had examined Bucklew prior to trial. Dr. Harry described Bucklew's physical impairment and his mental state, which included a diagnosis of antisocial personality disorder. Dr. Harry noted that the combined effects of Bucklew's extensive pain medication, the stressful situation of his break-up with Ray, and the resulting symptoms of depression all contributed to his lack of impulse control. He rendered the opinion that while Bucklew was aware of and responsible for his actions, he was under extreme mental or emotional disturbance at the time of the crime, which affected his actions but did not rob him of his free will or his understanding of the nature and consequences of his actions.

Dr. Harry also summarized the pretrial findings made by Michael Gelbort, Ph.D., a neuropsychologist. Dr. Harry testified extensively from Dr. Gelbort's findings, noting specifically Dr. Gelbort's finding that Bucklew's impulsiveness and inability to make judgments or solve problems in emotionally charged situations resulted from "brain deficits." (Trial Tr. at 1078.) He also noted that the objective testing administered by Dr. Gelbort placed Bucklew in the low normal range of intelligence.

Dr. Harry admitted on cross-examination that in spite of Bucklew's mental defect of depression, he had the ability to conform his conduct to the requirements of the law if he wanted to. He also stated on cross-examination that an antisocial personality disorder is a pattern of behavior that has been referred to as psychopathic or sociopathic. It includes characteristics of a pervasive pattern of violating the rights of others, and it is often accompanied by lying, manipulation, and malingering. Dr. Harry admitted that persons with this disorder often show little remorse for the consequences of their aggressive acts and blame the victims for being foolish or helpless.

To rebut the State's evidence of his dangerousness, defense counsel presented the testimony of the county jailer from the jail where Bucklew was held prior to trial but after his escape. The jailer indicated that Bucklew had been a calm and respectful prisoner who was not aggressive toward other prisoners. He said that Bucklew had not started any fights with staff and had become better adjusted to prison life. Defense counsel also presented the testimony of Bucklew's mother and father about their family life together and their love for Bucklew. In closing argument of the penalty phase, Bucklew's attorney argued that Bucklew had not assaulted other prisoners, had not been a predator in prison, and emphasized the jailer's testimony as evidence that Bucklew had adjusted well to prison life. Defense counsel assured the jury that there would be no escape from a maximum security prison.

The jury recommended a death sentence after finding two aggravating circumstances: (1) that Bucklew committed the crime of kidnapping during the murder, and (2) that he committed the crime of burglary during the murder. The trial court sentenced Bucklew to death for the murder; concurrent 30-year sentences for the kidnapping, burglary, and rape counts; and a 5-year sentence for the count of armed criminal action. The Supreme Court of Missouri affirmed the convictions and sentences. Bucklew, 973 S.W.2d at 98.

Bucklew sought postconviction relief (PCR) under Missouri Rule of Criminal Procedure 29.15, raising several claims of ineffective assistance of counsel. In particular, Bucklew asserted that his trial counsel had been ineffective in failing to call Dr. Gelbort to testify, failing to call a prison security expert to rebut the State's evidence of his dangerousness, and failing to call five character witnesses. Additionally, among other things, Bucklew argued that his counsel had opened the door to evidence of bad acts and failed to object to improper closing argument. The motion court denied relief, concluding that Bucklew's attorneys had not provided ineffective assistance. The Supreme Court of Missouri affirmed. Bucklew, 38 S.W.3d at 401.

Bucklew then filed a petition for a writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254, which the district court denied. We granted a certificate of appealability on two questions: (1) Whether Bucklew's trial counsel rendered ineffective assistance during the guilt phase of the trial by failing to investigate and present evidence relevant to his mental state at the time of the crime and by opening the door to evidence of prior bad acts; and (2) Whether Bucklew's trial counsel rendered ineffective assistance during the penalty phase by failing to investigate and present substantial mitigating evidence, failing to investigate and present evidence to rebut the State's aggravating factors, and failing to object to improper argument by the prosecutor.

II.

When considering the district court's ruling on a petition for a writ of habeas corpus, "we review the district court's findings of fact for clear error and its conclusions of law de novo." Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir.2005) (internal marks omitted). When a claim has been adjudicated on the merits in state court, habeas relief is warranted only if the state court proceeding resulted in (1) "a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme...