Forrest v. Steele, 12–2888.

• Decision Date: 22 August 2014
• Docket Number: No. 12–2888.,12–2888.
• Citation: 764 F.3d 848
• Parties: Earl FORREST, Petitioner–Appellant v. Troy STEELE, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

764 F.3d 848

Earl FORREST, Petitioner–Appellant

v.Troy STEELE, Respondent–Appellee.

No. 12–2888.

United States Court of Appeals, Eighth Circuit.

Submitted: Feb. 12, 2014.

Filed: Aug. 22, 2014.

Lance D. Sandage, Sandage Bell LLC, Kansas City, MO, argued (Kent E. Gipson, Law Office of Kent Gipson, LLC, Kansas City, MO, on the brief), for appellant.

Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, MO, argued (Chris Koster, Atty. Gen., on the brief), for appellee.

Before RILEY, Chief Judge, LOKEN and BYE, Circuit Judges.

RILEY, Chief Judge.

Earl Forrest was convicted of three counts of capital murder in Missouri state court and was sentenced to death. The Missouri Supreme Court affirmed the conviction and sentence on direct appeal, see State v. Forrest (Forrest I), 183 S.W.3d 218, 232 (Mo.2006) (en banc), and later affirmed the denial of Forrest's motion for post-conviction relief, see Forrest v. State (Forrest II), 290 S.W.3d 704, 718 (Mo.2009) (en banc). The district court ¹ denied Forrest's application for writ of habeas corpus under 28 U.S.C. § 2254, but granted a certificate of appealability on the question of ineffective assistance of counsel during the penalty phase of Forrest's trial. Forrest appeals the denial on this ground. With appellate jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

On December 9, 2002, Forrest, who had been drinking alcohol, and Angelia Gamblin, his girlfriend, drove to the home of Harriet Smith to resolve “a dishonored agreement” between Forrest and Smith. Forrest I, 183 S.W.3d at 223.² The agreement was that Forrest would introduce Smith to a source of methamphetamine in return for a lawn mower and a mobile home. See id. While Gamblin waited in the car, Forrest went into Smith's house and “demanded that Smith fulfill her part of the bargain.” Id. A melee ensued during which Forrest killed Michael Wells, a visitor at Smith's residence, with a “close contact” ³ shot to the face. See id. Smith attempted to escape with Gamblin's car, but hit a tree limb while backing out of the driveway. With the car stuck, Forrest coerced Smith back into the house where Forrest killed her, shooting her a total of six times, including two close contact shots to her face. See id.

Forrest and Gamblin fled, taking with them a lockbox containing about $25,000 of methamphetamine. See id. After Forrest and Gamblin returned home, Sheriff Bob Wofford and Deputy Sharon Joann Barnes, who were investigating the shooting, knocked on the door and asked for Forrest. See Forrest II, 290 S.W.3d at 707. Forrest approached the door and opened fire, wounding Sheriff Wofford and killing Deputy Barnes. See id.; Forrest I, 183 S.W.3d at 223. After Forrest and Gamblin were shot, Forrest surrendered. See Forrest I, 183 S.W.3d at 223.

A. Trial and Direct Appeal

Represented by Missouri public defenders Sharon Turlington and David Kenyon (collectively, defense counsel), Forrest was charged in Missouri state court with three counts of first degree murder for the deaths of Smith, Wells, and Deputy Barnes, for which the state sought the death penalty. See id. During the guilt phase of Forrest's trial, the jury found Forrest guilty on all three charges. See id.

During the penalty phase, defense counsel called fourteen lay witnesses to provide mitigating testimony. Forrest's brother William testified that he and Forrest regularly used illegal drugs and that William, Forrest, and their father drank alcohol heavily. William said their father always punished Forrest more strictly than William and recalled an occasion when their father brought Forrest to their front yard and “slapp[ed] him around” publicly. William explained their father pressured him and Forrest to be “tough guys” and to fight other boys. William testified that when they were adults, he and Forrest once had a fight during which Forrest hit William so hard William saw stars and William stabbed Forrest in the stomach with a buck knife. Defense counsel also presented the testimony of four of Forrest's stepchildren ⁴ to demonstrate he was a good father-figure. The children's mother, Nancy Young, testified to the same effect. Several friends and acquaintances, including Gamblin, testified Forrest abused alcohol and methamphetamine but that he still was a good person, parent, and friend.

Defense counsel also called three mental health experts. Clinical psychologist Dr. Robert Smith diagnosed Forrest with long-term depression, brain damage, and substance dependence. Dr. Smith explained that these conditions combined to cause mood swings as well as difficulty concentrating and problem-solving. Neuropsychologist Dr. Michael Gelbort concluded, according to a battery of neuropsychological tests, Forrest suffered from frontal lobe dysfunction, which accentuated Forrest's impulsive behavior. Dr. Gelbort also explained brain scans had not been performed on Forrest, but that the type of impairment from which Forrest was believed to suffer would “rarely” appear on PET,⁵ SPECT, MRI, or CT scans. Psychiatric pharmacist Dr. Roswell Lee Evans testified that long-term drug and alcohol abuse affects the ability to exercise judgment and recall memories. Dr. Evans also testified that considering the volume of alcohol consumed, Forrest was most likely in an “alcoholic blackout” at the time of the murders.

The jury unanimously recommended a death sentence for each conviction, finding multiple statutory aggravators applicable: Forrest killed Smith during the murder of Wells; he killed Smith and Wells to obtain something of pecuniary value (methamphetamine); and he killed Deputy Barnes while she performed her official duty as a peace officer. See Forrest I, 183 S.W.3d at 223. On appeal, the Missouri Supreme Court upheld Forrest's conviction and sentence. See id. at 232.

B. Post–Conviction Relief and Habeas Proceedings

After his unsuccessful direct appeal, Forrest moved for post-conviction relief, seeMo. Sup.Ct. R. 29.15, raising dozens of claims, including the four claims at issue here that defense counsel was ineffective during the penalty phase. Forrest's ineffective assistance claims cited defense counsel's failure to (1) conduct a PET scan; (2) present certain medical records; (3) call a particular psychologist to testify about Forrest's probability of future dangerousness; and (4) investigate three specific acquaintances of Forrest. After an evidentiary hearing as to those issues, the Missouri circuit court denied the motion.

On appeal, Forrest challenged, among other things, the state circuit court's conclusions on each of his four currently relevant ineffective assistance claims as to the penalty phase. The Missouri Supreme Court affirmed, analyzing each of Forrest's four ineffective assistance claims considered at the hearing and concluding that in each instance defense counsel's performance was constitutionally adequate and non-prejudicial. See Forrest II, 290 S.W.3d at 708–12, 714–15, 718.

Forrest then applied for a writ of habeas corpus in federal district court for the Western District of Missouri, presenting, among other claims, the four alleged instances of penalty phase incompetence as parts of a single ineffective assistance claim and arguing the Missouri Supreme Court improperly viewed these points individually, rather than cumulatively. The district court denied the application, rejecting Forrest's cumulative analysis assertion under Middleton v. Roper, 455 F.3d 838, 851 (8th Cir.2006), and concluding federal relief was barred under 28 U.S.C. § 2254(d). The district court granted Forrest a certificate of appealability as to his claims of ineffective assistance during the penalty phase. Forrest appeals on this basis.

II. DISCUSSION

“When considering the district court's denial of a habeas petition, ‘we review the district court's findings of fact for clear error and its conclusions of law de novo.’ ” Middleton, 455 F.3d at 845 (quoting Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir.2005)). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), prohibits us from granting habeas relief unless the state adjudication

(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). “AEDPA modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas retrials and to ensure state-court convictions are given effect to the extent possible under law.” Abernathy v. Hobbs, 748 F.3d 813, 816 (8th Cir.2014). Forrest “carries the burden of pro[ving]” this hurdle is met. Cullen v. Pinholster, 563 U.S. ––––, ––––, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). Forrest's underlying ineffective assistance claim is governed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires Forrest to “show both that counsel's performance was deficient and that the deficiency prejudiced the defendant.” Williams v. Roper, 695 F.3d 825, 830 (8th Cir.2012). We agree with the district court that the Missouri Supreme Court was reasonable in concluding defense counsel satisfied Strickland's performance prong.

A. Strickland's Performance Prong

“To prove that counsel's performance was deficient, the defendant must show ‘that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’ ” Strong v. Roper, 737 F.3d 506, 517 (8th Cir.2013) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). Under this standard, counsel must “ ‘make reasonable investigations or ... make a reasonable decision that makes particular investigations unnecessary.’ ” Id. (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052). “ ...