Purkey v. United States, 10–3462.

• Decision Date: 17 December 2013
• Docket Number: No. 10–3462.,10–3462.
• Citation: 729 F.3d 860
• Parties: Wesley Ira PURKEY, Movant–Appellant v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

729 F.3d 860

Wesley Ira PURKEY, Movant–Appellant

v.UNITED STATES of America, Respondent–Appellee.

No. 10–3462.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 20, 2012.

Filed: Sept. 6, 2013.

Rehearing Denied Dec. 17, 2013.

Teresa L. Norris, Columbia, SC, argued (Gary E. Brotherton, Legal Writes, LLC, Columbia, MO, on the brief), for appellant.

Kathleen D. Mahoney, Asst. U.S. Atty., Kansas City, MO, argued (Beth Phillips, U.S. Atty., David M. Ketchmark, Asst. U.S. Atty., on the brief), for appellee.

Before BYE, GRUENDER, and SHEPHERD, Circuit Judges.

GRUENDER, Circuit Judge.

Wesley Ira Purkey appeals the denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. We granted a certificate of appealability to review whether Purkey received effective assistance of counsel during the penalty phase of the trial and whether the district court ¹ abused its discretion by denying relief without conducting an evidentiary hearing. We conclude that Purkey's proffered evidence, taken as true, fails to establish that his trial counsel's allegedly deficient performance was prejudicial to Purkey. Therefore, we affirm.

I.

In November 2003, a federal jury convicted Purkey of the interstate kidnap, rape, and murder of sixteen-year-old Jennifer Long. During the penalty phase of the trial, the jury heard evidence on six statutory aggravating factors, four non-statutory aggravating factors, and twenty-seven mitigating factors. The jury found the existence of all six statutory aggravating factors and three of the four non-statutory aggravating factors. The verdict form also contained spaces to record the number of jurors who found the existence of each mitigating factor presented by Purkey. The jury left each of those spaces blank. The jury determined that Purkey should be sentenced to death. We affirmed Purkey's conviction and sentence on direct appeal. See United States v. Purkey, 428 F.3d 738 (8th Cir.2005), cert. denied,549 U.S. 975, 127 S.Ct. 433, 166 L.Ed.2d 307 (2006).

Purkey then filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 and sought an evidentiary hearing. As relevant to this appeal, Purkey argued that his death sentence should be set aside because he did not receive effective assistance of counsel during the penalty phase of his trial, as required by the Sixth Amendment. With his motion, Purkey submitted a proffer of “new” mitigating evidence including affidavits from several family members, friends, and expert witnesses who testified at trial. Purkey claims that his trial counsel, Frederick Duchardt, failed to perform consistent with objective standards of reasonablenessbecause he failed to adequately investigate and prepare these witnesses. Additionally, Purkey submitted affidavits from several potential witnesses whom Duchardt never contacted during his mitigation investigation or whom Duchardt decided not to call as witnesses. Purkey argues that Duchardt's performance also fell below an objective standard of reasonableness because he failed to call these witnesses during the penalty phase. Before replying to Purkey's motion, the Government requested an order from the district court compelling Duchardt to provide an affidavit responding to Purkey's claims of ineffective assistance. Duchardt prepared a 117–page affidavit, which the Government filed with its response to Purkey's § 2255 motion. Duchardt's affidavit contested many of the facts alleged in the affidavits attached to Purkey's § 2255 motion and provided strategic reasons for not presenting some of the proffered evidence—all challenging Purkey's claim that Duchardt's performance fell below an objective standard of reasonableness.

The district court denied Purkey's § 2255 motion, determining that Duchardt's performance did not fall below an objective standard of reasonableness. The district court alternatively concluded that, even assuming Duchardt's representation did fall below an objective standard of reasonableness, Purkey's proffered evidence did not support a finding of prejudice as required for relief under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The district court also denied Purkey's request for an evidentiary hearing, concluding that the proffered new evidence, taken as true, provided no basis for finding prejudice. See Machibroda v. United States, 368 U.S. 487, 496, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962) (remanding for an evidentiary hearing because the petitioner would have been entitled to relief if the allegations in his § 2255 motion were true, even if the allegations were improbable).

After the district court denied Purkey's motion for a certificate of appealability (“COA”), Purkey requested a COA from this court. See28 U.S.C. § 2253(c)(1)(B). We granted a COA on the issue of whether Duchardt's performance during the penalty phase constituted ineffective assistance of counsel under the Sixth Amendment. The COA allows Purkey to challenge three aspects of Duchardt's performance in this proceeding: (1) his alleged failure to adequately prepare and present the testimony of three expert witnesses, (2) his alleged failure to adequately investigate and prepare two mitigating witnesses, which resulted in their testimony being more prejudicial than beneficial, and (3) his alleged failure to adequately investigate and present other mitigating evidence. We also granted a COA to determine whether the district court abused its discretion in denying Purkey's request for an evidentiary hearing.

II.

“To establish ineffective assistance of counsel, [Purkey] must show that his counsel's performance was deficient, and that he suffered prejudice as a result.” Paul v. United States, 534 F.3d 832, 836 (8th Cir.2008) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). Purkey must establish prejudice by showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Wong v. Belmontes, 558 U.S. 15, 19, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Cullen v. Pinholster, 563 U.S. ––––, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011) (quotingStrickland, 466 U.S. at 694, 104 S.Ct. 2052). “That showing requires [Purkey] to establish ‘a reasonable probability that a competent attorney, aware of [the available mitigating evidence], would have introduced it at sentencing,’ and ‘that had the jury been confronted with this ... mitigating evidence, there is a reasonable probability that it would have returned with a different sentence.’ ” Wong, 558 U.S. at 19–20, 130 S.Ct. 383 (second and third alterations in original) (quoting Wiggins v. Smith, 539 U.S. 510, 535, 536, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). There must be a “ ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Cullen, 131 S.Ct. at 1403 (quoting Harrington v. Richter, 562 U.S. ––––, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011)).

During the penalty phase, Duchardt presented a lengthy and detailed mitigation case on behalf of Purkey, with testimony from eighteen witnesses spanning more than two days. The witnesses included Purkey's brother, daughter, and aunt, as well as inmates and religious counselors with whom Purkey had developed relationships while in prison. Each family member testified that, as a child, Purkey suffered significant physical and emotional abuse at the hands of his parents. The evidence established that Purkey's father was an alcoholic who repeatedly assaulted both Purkey and his brother and who eventually committed suicide. His mother, also an alcoholic, humiliated Purkey for stuttering, once throwing a drink in his face while he was having trouble speaking. Purkey's brother, Gary Hamilton, was sexually abused by their mother beginning at age eleven or twelve. Hamilton testified that she forced him to have sex with her in the bathroom on numerous occasions, though he did not know whether their mother also abused Purkey in this manner because the two never discussed it.

A religious counselor testified that Purkey was eager to leave his past behind, which Purkey had demonstrated by renewing his Christian commitments and expressing remorse for his crimes. Duchardt also elicited evidence that Purkey filed a request with the Bureau of Prisons to have his Aryan Brotherhood tattoos removed and attempted to cover up the tattoos on his own using flesh-toned ink. Family, friends, and fellow inmates alike testified that Purkey was a good friend, and that, if he were granted a life sentence rather than death, it would enrich their lives and the lives of his fellow prisoners.

Duchardt also presented testimony from various prison officials and mental health experts. Perhaps the most important evidence Duchardt presented came from two of Purkey's expert witnesses, Dr. Stephen Peterson and Dr. Mark Cunningham, who both testified in detail about the sexual abuse that Purkey suffered as a child. Dr. Peterson testified that Purkey's mother, Velma, sexually assaulted Purkey between ages six and fourteen, teaching him to “sexually stimulate her anally and orally and ... washing him in way[s] that were sexualized.” Purkey also witnessed his mother “being sexually involved with many of her paramours” after his father left the family household. When Purkey was about fourteen years old, his father began offering to pay for prostitutes for Purkey, “encourag[ing] him to be sexually active well beyond his years and emotional development.” According to Dr. Peterson, these experiences rendered Purkey unable to engage normally with anyone in a sexual way and caused him to seek sexual gratification in a “scripted and controlled” manner.

In addition to interviewing Purkey, Dr. Peterson reviewed Purkey's medical and mental health records to corroborate...