Guinan v. Armontrout, 89-2301

• Decision Date: 19 September 1990
• Docket Number: No. 89-2301,89-2301
• Citation: 909 F.2d 1224
• Parties: Frank J. GUINAN, Appellant, v. William ARMONTROUT, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1224

909 F.2d 1224

Frank J. GUINAN, Appellant, v. William ARMONTROUT, Appellee.

No. 89-2301.

United States Court of Appeals Eighth Circuit.

Submitted May 14, 1990.

Decided Aug. 3, 1990.

Rehearing and Rehearing En Banc Denied

Sept. 19, 1990.

W. Edward Reeves, Kansas City, Mo., for appellant.

Stephen D. Hawke, Jefferson City, Mo., for appellee.

Before ARNOLD, FAGG, and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

Frank J. Guinan appeals from the District Court's ¹ denial of his petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Sec. 2254 (1982). Guinan was convicted by a jury of capital murder in connection with the murder of a fellow inmate at the Missouri State Penitentiary. Guinan and another inmate entered the victim's cell and repeatedly stabbed him with "knives" fashioned out of one half of a pair of scissors. The jury sentenced Guinan to death. Guinan's conviction and sentence were affirmed on appeal, State v. Guinan, 665 S.W.2d 325 (Mo.) (en banc), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984), and his motion for post-conviction relief pursuant to Missouri Supreme Court Rule 27.26 ² was denied. Guinan v. State, 726 S.W.2d 754 (Mo.Ct.App.1986), cert. denied, 484 U.S. 873, 108 S.Ct. 210, 98 L.Ed.2d 161 (1987). In the present appeal Guinan argues: (1) the trial court's denial of his pretrial motion for a state-sponsored psychiatric evaluation resulted in a denial of due process; (2) his trial counsel was ineffective in failing adequately to investigate possible mitigating evidence, specifically Guinan's mental state and the testimony of family members; (3) the penalty-phase jury instruction concerning mitigating factors violated his Eighth Amendment rights as it did not comport with Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988); and (4) improper remarks by the prosecutor during closing argument violated his Eighth Amendment rights. We affirm the District Court's denial of habeas relief.

I.

Guinan's first ground for habeas relief alleges that the trial court committed plain error in denying Guinan's pretrial motion for a psychiatric evaluation in violation of his due process rights. We do not agree.

At the outset, we note that the state argues vigorously that this issue is procedurally barred because it was not properly presented to the state courts and, accordingly, must be dismissed unless Guinan can demonstrate both adequate cause excusing his failure to raise the claim in state court and actual prejudice resulting from a federal court's refusal to address the merits of the claim. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977). The state separates Guinan's claim of trial court error into three discrete claims: the "insanity claim," alleging that the denial of a psychiatric examination violated due process as it deprived Guinan of a possible insanity defense; the "competency claim," alleging that the mental exam was necessary to determine whether Guinan was competent to stand trial; and the "mitigation claim," alleging a due process violation because Guinan was deprived of possible mitigating evidence relating to his mental state at the time of the murder. The record indicates that the insanity and mitigation claims were raised by Guinan in his initial Rule 27.26 motion and were found to be without merit. On appeal of his 27.26 motion, Guinan seems to have advanced only the competency claim. The state appellate court noted the discrepancy, but because evidence regarding the competency claim was introduced at the hearing on the 27.26 motion and the hearing court addressed the issue in its findings and conclusions, the appellate court treated the 27.26 motion as amended to conform to the evidence and addressed the competency issue. Guinan, 726 S.W.2d at 756-57. In his habeas petition, Guinan raised the insanity and mitigation aspects of his due process claim and the District Court addressed both issues despite the state's contention that they were procedurally barred because they were allegedly abandoned in the state court. Based on this record, the state urges us to hold that the insanity and mitigation claims are procedurally barred from federal review. We decline to do so.

A federal court may consider the merits of a claim made in a habeas corpus petition if the petitioner has fairly presented to the state courts the substance of his claim. Buckley v. Lockhart, 892 F.2d 715, 718 (8th Cir.1989) (citing Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982)), cert. denied, --- U.S. ----, 110 S.Ct. 3243, 111 L.Ed.2d 753 (1990). In substance the three claims are obviously closely related and evidence concerning all three of them was presented to the Rule 27.26 trial court. Significantly, the legal analysis to be applied by this Court to Guinan's due process claim is the same regardless of which of the discrete aspects of the claim we address. See Buckley, 892 F.2d at 719 (holding that petitioner's federal habeas claims of ineffective assistance of counsel were procedurally barred because "the same facts and legal theories are not at issue in [petitioner's] various petitions"). Because of the serious nature of the penalty imposed in this case and the obvious interrelation of each aspect of Guinan's asserted due process violation, we conclude that the due process claim as a whole was adequately presented to the state courts and we shall address the mitigation and insanity aspects of this claim as necessary for a resolution of the issue.

In Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53 (1985), the Supreme Court held that the denial of an indigent defendant's request for a psychiatric evaluation violates due process "when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial." This Court has held that in order to establish that an expert is necessary, a defendant must demonstrate a reasonable probability that the requested expert would aid in the defendant's defense and that the denial of expert assistance would result in an unfair trial. United States v. Saint John, 851 F.2d 1096, 1098 (8th Cir.1988); Little v. Armontrout, 835 F.2d 1240, 1244 (8th Cir.1987) (en banc), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101 L.Ed.2d 894 (1988). We assume arguendo, without deciding, that a defendant charged with capital murder has a similar due process right to expert assistance if his mental state is to be a "significant factor" at the sentencing phase of trial.

Applying the above standard to the facts of this case, we conclude, as did the District Court, that this claim provides Guinan with no basis for habeas relief. Guinan did not demonstrate to the trial judge that his mental state was likely to be a significant factor at trial or at sentencing. In support of his pretrial motion for a mental examination, counsel for Guinan presented three factors: Guinan's history of violent crime, the brutality of the crime with which he was charged, and counsel's belief that Guinan suffered from a mental disease--a belief trial counsel explained at the Rule 27.26 hearing was based on the above two factors and the difficulty counsel experienced communicating with Guinan. Trial Transcript at 6-7; Transcript of Rule 27.26 Hearing at 34. These factors alone clearly do not establish that Guinan's mental state was likely to be a significant issue in his case. The first two factors essentially argue for a per se rule requiring a mental evaluation in any case involving a defendant with a history of violent crime charged with yet another violent crime. Our cases have not adopted such a per se rule and we categorically decline to do so here. The third basis, not supported by example or more detailed explanation, cannot be said to have demonstrated to the trial judge that Guinan's mental state was to be a significant issue at trial or at sentencing. We conclude that the trial court's denial of Guinan's pretrial motion for a state-sponsored psychiatric evaluation did not deprive Guinan of due process.

II.

Guinan next argues that his retained trial counsel was ineffective in not introducing evidence of Guinan's mental state or the testimony of family members as mitigating evidence at the sentencing phase of trial. These claims were raised in Guinan's 27.26 motion and Guinan's counsel testified at the hearing held on the motion. Both the hearing and appellate courts found the claims of ineffectiveness to be without merit. See Guinan v. State, 726 S.W.2d at 758. The District Court ordered a psychiatric evaluation of Guinan and heard considerable testimony at the habeas hearing from the doctors who conducted the exam. The court also heard testimony from Guinan's mother and sister regarding their discussions with Guinan's counsel prior to the trial and the content of their potential mitigating testimony. After considering this evidence and the trial record, the District Court concluded that Guinan's counsel was not constitutionally ineffective. We agree with the District Court's conclusion.

The issue of ineffective assistance of counsel presents a mixed question of law and fact, and as such this Court may conduct its own independent review of the District Court's conclusions. Laws v. Armontrout, 863 F.2d 1377, 1381 (8th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989). Any factual findings rendered by the state court are presumed to be correct "unless conditions exist which cast those findings into doubt." Id.; 28 U.S.C. Sec. 2254(d). As always, we review the District Court's findings of fact under the clearly erroneous standard.

The now familiar two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), governs claims of ineffective assistance of counsel. A defendant must show both that his counsel was deficient in that he "made errors so serious...