Forrest v. Steele, Case No. 09-8002-CV-W-ODS

• Decision Date: 11 May 2012
• Docket Number: Case No. 09-8002-CV-W-ODS
• Parties: EARL FORREST, Petitioner, v. TROY STEELE, Respondent.
• Court: U.S. District Court — Western District of Missouri

EARL FORREST, Petitioner, v. TROY STEELE,¹Respondent.

Case No. 09-8002-CV-W-ODS

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

Date: May 11, 2012

ORDER AND OPINION (1) DENYING MOTION FOR DISCOVERY AND (2) DENYING

PETITION FOR WRIT OF HABEAS CORPUS

Pending is Petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Petitioner's Motion for Discovery is also pending. Both the motion (Doc. # 31) and the Petition (Doc. # 22) are denied.

I. BACKGROUND

The underlying facts were summarized by the Missouri Supreme Court as follows:

On December 9, 2002, Appellant, who had been drinking, and his girlfriend, Angelia Gamblin, drove to Harriett Smith's home. Appellant and Smith apparently had a falling out over a dishonored agreement with Smith to purchase a lawn mower and a mobile home for Appellant in exchange for Appellant introducing Smith to a source for methamphetamine. Appellant demanded that Smith fulfill her part of the bargain. During the ensuing melee, Appellant shot Michael Wells, a visitor at the Smith residence, in the face killing him. He also killed Smith, shooting her a total of six times.

Appellant removed a lockbox from Smith's home containing approximately $25,000 worth of methamphetamine and returned to his home with Gamblin, where a shootout with the police ensued. Appellant shot Sheriff Bob Wofford in the abdomen wounding him. He killed DeputySharon Joann Barnes, shooting her once in her chest and a second time in the back of her head. Appellant sustained a bullet wound to his face. Gamblin was shot twice, once in her shoulder and once in her back.

Appellant finally surrendered and was charged with three counts of first-degree murder for the deaths of Smith, Wells and Barnes. The jury found Appellant guilty on all three counts. During the penalty phase, the jury found the presence of multiple statutory aggravators to support its unanimous recommendation for a death sentence for each of the three murders. With regard to the murder of Harriett Smith, the jury found that: (1) her murder was committed while Appellant was engaged in the commission of another unlawful homicide, that of Michael Wells; and (2) Appellant murdered Smith for the purpose of receiving something of monetary value. The statutory aggravator found in relation to Michael Wells's murder was that he too was murdered for pecuniary gain. The murder of Joann Barnes carried the statutory aggravator of being committed against a peace officer while engaged in the performance of her official duty.

State v. Forrest, 183 S.W.3d 218, 223 (Mo. 2006) (en banc), cert. denied, 549 U.S. 840 (2006) (footnote omitted).

The conviction and sentence were affirmed on direct appeal. The trial court denied postconviction relief, and this decision was affirmed. Forrest v. State, 290 S.W.3d 704 (Mo. 2009) (en banc). Petitioner then instituted proceedings in the Missouri Supreme Court that were treated as a Petition for Writ of Habeas Corpus. The Missouri Supreme Court designated the trial judge to be a Special Master. The Special Master issued his findings and recommendations in May 2010, and on August 31, 2010, the Missouri Supreme Court denied the Petition for Writ of Habeas Corpus.

The Court's review of the Record, including particularly the Trial Transcript (hereinafter "T.Tr.") reveals that the defense theory did not involve denying that Petitioner killed Smith, Wells, or Barnes. Instead, the defense attempted to persuade the jury that Petitioner did not have the mental state required for first degree murder. Additional facts about the crimes and the underlying proceedings will be discussed as they become relevant to Petitioner's claims.

II. DISCUSSION

Pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a writ of habeas corpus shall not be issued on a claim litigated on the merits in state court unless the state court's decision

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The "contrary to" and "unreasonable application" provisions in the first subsection have independent meaning. The "contrary to" provision applies "if the state court arrive at a conclusion opposite to that reached by the Supreme Court on a question of law, or reached a decision contrary to Supreme Court precedent when confronting facts that were materially indistinguishable." Jackson v. Norris, 651 F.3d 923, 925 (8th Cir. 2011). The "unreasonable application" clause applies "if the state court correctly identified the governing legal principle, but unreasonably applied it to the facts of the particular case." Id. With respect to the facts, AEDPA commands deference to the factual determinations of the state courts. This deference cannot be overcome simply by marshaling the contrary evidence from the Record. Resolution of factual issues often requires reconciling contrary evidence or ascertaining which of two contradictory statements to believe. Recounting contrary evidence will not automatically demonstrate a factual finding is "unreasonable . . . in light of the evidence presented in the State court proceeding."

Most of Petitioner's claims assert ineffectiveness on the part of trial counsel and are governed by the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). "This standard requires [the applicant] to show that his 'trial counsel's performance was so deficient as to fall below an objective standard of reasonable competence, and that the deficient performance prejudiced his defense.'" Nave v. Delo,62 F.3d 1024, 1035 (8th Cir. 1995), cert. denied, 517 U.S. 1214 (1996) (quoting Lawrence v. Armontrout, 961 F.2d 113, 115 (8th Cir. 1992)). This analysis contains two components: a performance prong and a prejudice prong.

Under the performance prong, the court must apply an objective standard and "determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance," Strickland, 466 U.S. at 690, while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Id. at 689. Assuming the performance was deficient, the prejudice prong "requires proof 'that there is a reasonable probability that, but for a counsel's unprofessional errors, the result of the proceeding would have been different.'" Lawrence, 961 F.2d at 115 (quoting Strickland, 466 U.S. at 694).

Id. Failure to satisfy both prongs is fatal to the claim. Pryor v. Norris, 103 F.3d 710, 713 (8th Cir. 1997) (no need to "reach the performance prong if we determine that the defendant suffered no prejudice from the alleged ineffectiveness"); see also DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000). "An ineffective assistance of counsel claim is a mixed question of law and fact." McReynolds v. Kemna, 208 F.3d 721, 723 (8th Cir. 2000). Consequently, the state courts' findings of historical fact are entitled to a presumption of correctness, and their application of Strickland to those facts must stand unless they applied those standards in an unreasonable manner.

A. Defense Counsel's Failure to Call Certain Witnesses During the Penalty Phase

In his first claim, Petitioner contends his trial counsel was ineffective for failing to investigate and present several pieces of mitigating evidence during the penalty phase. Specifically, he faults trial counsel for (1) failing to obtain a PET scan of his brain and elicit testimony from a doctor (such as Dr. David Preston, who testified at the postconviction proceeding), (2) failing to introduce medical records of Petitioner's prior head injuries, (3) failing to present testimony from Dr. Mark Cunningham to establish that Petitioner would not present a danger to other prisoners or prison staff and (somewhat paradoxically) that Petitioner's "childhood development contained severalrisk factors that put him at risk to commit violence," and (4) failing to present testimony from an employer, a childhood friend, and a neighbor. Consideration of these claims requires a general understanding of the evidence presented during the penalty phase, which the Court will organize based on the claims at issue.²

1. PET Scan and Medical Records

Defense Counsel³ elicited testimony from Dr. Robert Smith, a clinical psychologist and certified addiction specialist, to support the defense theory that Petitioner lacked the mental state required for first degree murder. Dr. Smith's evaluations prior to trial caused him to believe Petitioner suffered from dysthymic disorder (a form of depression), brain injury or damage, and substance abuse or addiction. Dr. Smith described how these conditions combined to cause difficulty in concentration and problem-solving and mood swings. Dr. Smith also testified during the penalty phase, and his testimony was consistent with his guilt-phase testimony. Defense Counsel also elicited testimony from Dr. Michael Gelbort, a clinical neuropsychologist who testified his evaluation caused him to believe Petitioner had brain damage. As part of his evaluation, Dr. Gelbort considered aspects of Petitioner's medical history as reported by Petitioner, including past events when Petitioner sufferedhead injuries. T.Tr. at 1545. When asked if medical testing would reveal the injuries described, Dr. Gelbort stated in part that "MRI, CT look at the structure, PET or SPECT scan is another way to look at if the structures are using normal amounts of energy. Those may - those could possibly show up with problems in this type of a condition, but they were not given." T.Tr. at 1555. Finally, Dr. Lee Evans, a psychiatric pharmacist and the dean of the School of...