King v. Kemna

• Decision Date: 11 January 2001
• Docket Number: No. 99-2047,99-2047
• Citation: 266 F.3d 816
• Parties: (8th Cir. 2001) JERRY DEAN KING, APPELLANT, v. MIKE KEMNA, SUPERINTENDENT; JEREMIAH (JAY) NIXON, ATTORNEY GENERAL, STATE OF MISSOURI, APPELLEES. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 816

266 F.3d 816 (8th Cir. 2001)

JERRY DEAN KING, APPELLANT, v. MIKE KEMNA, SUPERINTENDENT; JEREMIAH (JAY) NIXON, ATTORNEY GENERAL, STATE OF MISSOURI, APPELLEES.

No. 99-2047

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: January 11, 2001

Filed: September 17, 2001

Appeal from the United States District Court for the Western District of Missouri. [Copyrighted Material Omitted] Before Wollman, Chief Judge, Heaney, McMILLIAN, Richard S. Arnold, Bowman, Beam, Loken, Hansen, Morris Sheppard Arnold, Murphy, and Bye, Circuit Judges.

Loken, Circuit Judge.

In 1994, Missouri inmate Jerry Dean King was convicted of first-degree assault and armed criminal action and received two consecutive life sentences for shooting his brother Dennis. King now appeals the denial of his 28 U.S.C. § 2254 petition for a writ habeas corpus. The issue is whether his trial counsel provided constitutionally ineffective assistance in failing to investigate and present evidence of King's diminished mental capacity. After a panel of this court reversed, we granted the State's petition for rehearing en banc and vacated the panel opinion. Concluding that King's contention is procedurally defaulted and is in any event without merit, we affirm.

I. Factual and Procedural Background.

We state the background facts as summarized by the Missouri Court of Appeals in affirming King's conviction and the denial of state post-conviction relief. State v. King, No. 19751 (Mo. App. Mar. 24, 1997) (unpublished). In November 1993, King was living in a trailer behind his brother's home. At 4:00 a.m. on November 30, King came to the door and Dennis's wife Viola let him in. King told Dennis that he wanted to rob a bank, produced a.22 caliber pistol, and asked Dennis to load it. Dennis did so and gave the gun back to King, who put it in his pocket. After jumping around the room to prepare for the impending robbery, King asked his brother for a hug as it would be the last time they would see each other. After one hug, King asked for another. During the second hug, King pulled out the gun, shot Dennis under the arm, and ordered Dennis and Viola to the floor. Dennis wrestled with King, allowing Viola to escape. Dennis seized the gun, threw it into the front yard, and ran from the house. Viola, hiding in the backyard, heard a second gunshot.

Dennis hid in a gully when he heard King running down the road. King ran to the house of a neighbor, Kenneth Ruark, and pounded on the door. Ruark opened the door and saw King with a gunshot wound in his leg. King told Ruark that Dennis had shot him. Ruark let King inside and called for help. Five minutes later, Dennis knocked on Ruark's door. Dennis told Ruark that King had shot him. Ruark helped Dennis inside. When the brothers were together, King hit Dennis several times until Ruark intervened. Dennis repeatedly asked King why he shot him, but King did not reply. King accused Dennis of shooting him in the leg. Dennis replied, "You shot yourself... to make it look good."

Prior to trial, Public Defender Victor Head, representing King, moved for a mental evaluation of his client. The motion was granted, and King was examined by Dr. Harold Robb, senior psychiatrist at the Southwest Missouri Mental Health Center. Dr. Robb's seven-page report, dated January 26, 1994, was based upon a psychiatric interview with King, the court order directing the examination, the criminal complaint against King, and the police report regarding the incident. The report described in detail King's education, family and employment history, psychiatric and medical history,¹ and personal habits; King's description of the shooting incident and his relationship with his brother; and Dr. Robb's opinions as to King's speech pattern, perception, orientation, insight, judgment, mood, general sensorium, and psychomotor activity at the interview. The report concluded with a section entitled, "Report of Evaluation in Accordance with Section 552.010, RSMo," the Missouri statute defining mental disease or defect for purposes of criminal proceedings. Dr. Robb reported:

2. [King] does not suffer from a mental illness or defect as defined in Section 552.010, RSMo.

3. [King] does not suffer from a mental disease or defect that would cause him to lack capacity to understand the proceedings against him or to assist in his own defense.

4. It is my opinion, on the basis of the present examination and background information, that at the time of the alleged criminal conduct, [King] did not suffer from a mental disease or defect that wold cause him not to know or appreciate the nature, quality or wrongfulness of his conduct or make him incapable of conforming his conduct to the requirements of the law.

Following a change of venue, Assistant Public Defender Frank Yankoviz assumed responsibility for King's defense. At trial King claimed self-defense. He testified that Dennis had urged King to help buy and sell children, and the brothers argued because King did not want to be involved. Dennis retrieved a pistol from another room. King tried to grab the gun, and it discharged as he and Dennis wrestled. King claimed that Dennis followed him outside with a rifle, and King was shot in the leg while wrestling Dennis for the rifle. Finding Dennis's testimony more credible than King's, the jury convicted King of first-degree assault and armed criminal action. After pronouncing sentence, the trial court asked King whether he was satisfied with attorney Yankoviz's representation. King responded, "Yes, sir. No question."²

In June 1995, King -- represented by new counsel -- filed a motion for post-conviction relief under Missouri Supreme Court Rule 29.15. As relevant to this appeal, King alleged that trial counsel provided ineffective assistance by failing to fully investigate whether King was competent to stand trial and aid in his defense, and whether he "suffered from a mental disease or defect which would exclude criminal responsibility." At an evidentiary hearing on the motion, King presented the testimony and written evaluations of neuropsychologist Dennis Cowan and psychiatrist William Logan. Dr. Cowan noted that King exhibited very marked neuropsychological dysfunctions, attributing these deficits to King's gunshot wound to the head, other head injuries, and his history of substance abuse. Dr. Logan opined that King's gunshot wound caused extensive memory loss, cognitive difficulties, and post-traumatic stress disorder. Both experts opined that King tended to confabulate to fill gaps in his memory, which could render any trial testimony incredible. They also criticized Dr. Robb's psychiatric evaluation because Robb was aware of King's head injury but did not obtain his medical records and conduct neuropsychological testing. Dr. Logan concluded that, at the time of the November 1993 shooting, King lacked the ability to understand the nature or quality and wrongfulness of his actions, or to control his actions within the requirements of the law.

After King rested, the State called attorney Yankoviz, who testified that King had instructed him not to pursue an insanity defense "because he didn't want to end up in a psychiatric institution." Acknowledging that King had asked Yankoviz to obtain hospital records pertaining to the gunshot wound to King's head, Yankoviz testified he decided not to obtain those records because King had been "adamant about not pursuing the legal defense of not guilty by reason of mental disease or defect."

The state trial court denied King's motion for post-conviction relief, finding that King was competent to stand trial, competent to aid in his defense at trial, did not suffer from mental disease or defect excluding criminal responsibility, and "made a rational decision not to pursue the defense of mental disease or defect excluding responsibility." Based upon these findings, the court concluded that King had not established ineffective assistance of counsel. King appealed, arguing that Dr. Robb's report was inadequate and attorney Yankoviz provided ineffective assistance when he "failed to investigate whether [King] was competent to stand trial or criminally responsible for his conduct." The Missouri Court of Appeals affirmed noting that the trial court "obviously disbelieved the testimony of Drs. Cowan and Logan."

King then filed this petition for a federal writ of habeas corpus. After quoting at length from the Missouri Court of Appeals decision, the district court³ denied the petition, concluding:

The resolution [of the ineffective assistance claim presented to the state courts] did not result 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 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)(1) and (2) (as amended April 24, 1996).

On appeal, King raises for the first time a new theory -- that Yankoviz provided ineffective assistance by failing to investigate King's mental condition beyond Dr. Robb's report, not for the purpose of establishing incompetency to stand trial or lack of criminal responsibility, but for the purpose of presenting a partial defense of diminished mental capacity and of providing the jury "an explanation for the unorganized and seemingly incredible manner in which [King] testified at trial."

II. The New Theory Is Procedurally Barred.

In his motion for state post-conviction relief, King alleged that trial counsel failed to fully investigate whether King was competent to stand trial and aid in his defense, or if he "suffered from a mental disease or defect which would exclude criminal responsibility." (Emphasis added.) The state courts denied the motion after an evidentiary hearing, finding that King was competent to stand trial, competent to aid in his...