Zeitvogel v. Delo

• Decision Date: 01 May 1996
• Docket Number: No. 94-2976,94-2976
• Parties: Richard S. ZEITVOGEL, Appellant, v. Paul DELO, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 276

84 F.3d 276

Richard S. ZEITVOGEL, Appellant, v. Paul DELO, Appellee.

No. 94-2976.

United States Court of Appeals Eighth Circuit.

Submitted April 10, 1995.

Filed Feb. 28, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied May 1, 1996.

Appeal from the United States District Court for the Western District of Missouri.

Susan M. Hunt, Kansas City, MO, argued (Elena M. Franco, on the brief), for appellant.

Frank A. Jung, Asst. Atty. Gen., Jefferson City, MO, argued for appellee.

Before: FAGG, HENLEY, and BOWMAN, Circuit Judges.

FAGG, Circuit Judge.

Richard S. Zeitvogel is on death row in Missouri for murdering Gary Wayne Dew in 1984. Zeitvogel appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 (1988), and we affirm.

Zeitvogel killed Dew while they were cellmates in the maximum security area of the Missouri State Penitentiary. A prison guard responding to a flashing emergency light over their cell found Dew dead on a mattress on the floor, and Zeitvogel alone with the body in the locked cell. Zeitvogel told the guard, "I killed my cellie." During Zeitvogel's trial for murdering Dew, the State of Missouri presented evidence that Zeitvogel strangled Dew from behind with a plastic-covered wire, then waited about three hours before activating the emergency light to summon help. Zeitvogel admitted killing Dew, but attempted to show he choked Dew with a sheet in self-defense after Dew attacked him. The jury rejected Zeitvogel's self-defense theory and convicted Zeitvogel of capital murder.

At the penalty phase of the trial, the State introduced certified copies of Zeitvogel's earlier convictions for capital murder, rape, armed robbery, assault, and jail break and escape. State witnesses explained Zeitvogel had received the earlier murder and assault convictions for fatally stabbing a fellow inmate and threatening a prison guard. Zeitvogel presented no mitigating evidence at the penalty phase. His attorney made a plea for mercy and argued Dew had provoked Zeitvogel by assaulting him. After finding the presence of three aggravating circumstances, the jury returned a verdict recommending the death penalty. The district court denied Zeitvogel's posttrial motions and sentenced Zeitvogel to death.

Zeitvogel unsuccessfully challenged his conviction and sentence on direct appeal, see State v. Zeitvogel, 707 S.W.2d 365 (Mo.) (en banc), cert. denied, 479 U.S. 871, 107 S.Ct. 243, 93 L.Ed.2d 168 (1986), and in Missouri postconviction proceedings, see Zeitvogel v. State, 760 S.W.2d 466 (Mo.Ct.App.1988), cert. denied, 490 U.S. 1075, 109 S.Ct. 2089, 104 L.Ed.2d 652 (1989). Zeitvogel then filed this habeas petition in the district court, raising thirty-two grounds for relief. While Zeitvogel's federal habeas petition was pending, Zeitvogel filed a motion for state habeas relief and the Missouri Supreme Court denied the motion. See Zeitvogel v. Delo, No. 73714 (Mo. Apr. 30, 1991). Back in the federal district court, Zeitvogel moved for an evidentiary hearing and for the appointment of experts to help him present his claims. Concluding as a matter of law that all Zeitvogel's claims were either procedurally barred or meritless, the district court denied Zeitvogel's petition without holding a hearing or appointing experts. After the district court later refused to alter or amend the judgment, Zeitvogel brought this appeal.

Zeitvogel mainly contends the State's failure to disclose certain hospital and prison records containing evidence of Zeitvogel's low intelligence, learning disabilities, and epilepsy caused by organic brain damage (collectively "mental deficiencies") violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and his trial counsel was ineffective in not obtaining and presenting evidence of these mental deficiencies during the guilt and penalty phases of his trial. Zeitvogel now wants a federal hearing to present the evidence and expert testimony about its legal significance.

Zeitvogel failed to present and preserve these contentions in state court. Zeitvogel failed to raise his Brady claim and his guilt-phase ineffective assistance claim in state court proceedings as Missouri law requires. See LaRette v. Delo, 44 F.3d 681, 687 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 246, 133 L.Ed.2d 172 (1995). Although Zeitvogel raised his penalty-phase ineffective assistance claim and presented some supporting evidence in the state postconviction hearing, Zeitvogel failed to present the additional supporting evidence that he now wants us to consider. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 8-12, 112 S.Ct. 1715, 1719-21, 118 L.Ed.2d 318 (1992) (petitioner must fully develop the supporting facts during the state court hearing); Battle v. Delo, 64 F.3d 347, 354 (8th Cir.1995) (same), cert. denied, --- U.S. ----, 116 S.Ct. 1881, 135 L.Ed.2d 176 (1996). Because Zeitvogel failed to present his claims and additional supporting evidence in state court, we may not consider them in this federal habeas proceeding unless Zeitvogel shows both cause for his failure and resulting prejudice, or that a fundamental miscarriage of justice would otherwise result because he is actually innocent of capital murder or the death penalty. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2564-65, 115 L.Ed.2d 640 (1991); Keeney, 504 U.S. at 11, 112 S.Ct. at 1721; Joubert v. Hopkins, 75 F.3d 1232, 1244 (8th Cir.1996); Nave v. Delo, 62 F.3d 1024, 1032 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1837, 134 L.Ed.2d 940 (1996).

We need not address the miscarriage of justice exception in this case because Zeitvogel did not assert actual innocence in his habeas petition, see Charron v. Gammon, 69 F.3d 851, 857 n. 6 (8th Cir.1995), and did not develop an actual innocence argument in his appellate brief, see Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir.1994). Instead, Zeitvogel relies on the cause and prejudice exception to excuse his procedural default. The district court held this exception does not apply because Zeitvogel cannot show prejudice. In our view, Zeitvogel cannot show cause for his state court default; thus, we need not decide whether Zeitvogel suffered actual prejudice. Oxford v. Delo, 59 F.3d 741, 748 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1361, 134 L.Ed.2d 528 (1996); see also Auman v. United States, 67 F.3d 157, 161-62 (8th Cir.1995) (Court of Appeals can affirm on any ground supported by record).

To establish cause, Zeitvogel must show something beyond the control of postconviction counsel, like State interference, actually prevented postconviction counsel from raising the claims and presenting the evidence in state court. Coleman, 501 U.S. at 753, 111 S.Ct. at 2566-67. Zeitvogel argues the State's failure to produce the hospital and prison records requested by Zeitvogel's trial attorney prevented his postconviction attorney from obtaining a sufficient factual basis to raise the defaulted Brady and guilt-phase ineffective assistance claims, and from presenting the additional evidence supporting the penalty-phase ineffective assistance claim. The unproduced records are Fulton State Hospital psychiatric reports about Zeitvogel from 1975, Missouri State Penitentiary Hospital records discussing Zeitvogel's 1984 hospital stay, and a 1983 Missouri Department of Corrections re-classification analysis. Zeitvogel suggests postconviction counsel could not know the State failed to produce these documents because the documents were not uncovered until after the postconviction proceedings were finished, and postconviction counsel needed the documents to learn of Zeitvogel's mental deficiencies and to show that trial counsel should have presented evidence at the guilt and penalty phases based on the deficiencies.

The State's failure to produce the records does not excuse Zeitvogel's procedural default. Lack of production by state officials is not cause excusing procedural default if the information the officials failed to produce is reasonably available through other means. Barnes v. Thompson, 58 F.3d 971, 975 (4th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 435, 133 L.Ed.2d 350 (1995). When a petitioner can obtain the information contained in unproduced documents through a reasonable and diligent investigation, the State's failure to produce documents is not cause. Id.; see McCleskey v. Zant, 499 U.S. 467, 497-98, 111 S.Ct. 1454, 1471-73, 113 L.Ed.2d 517 (1991). Here, postconviction counsel knew the records existed and the information contained in them was either known or reasonably available through means other than State production.

Postconviction counsel knew the State had hospital and prison records about Zeitvogel. A psychiatrist who examined Zeitvogel before the postconviction hearing, Dr. A.E. Daniel, told postconviction counsel that Fulton State Hospital and the Missouri State Penitentiary Hospital had medical records about Zeitvogel from the 1970s and 1980s, and counsel acknowledges in his affidavit that he believed the state hospitals had all Zeitvogel's psychiatric records. The re-classification analysis is just a standard prison record from Zeitvogel's prison file, and it is common knowledge that prisons routinely keep records about inmates. Shaw v. Delo, 971 F.2d 181, 184 (8th Cir.1992), cert. denied, 507 U.S. 927, 113 S.Ct. 1301, 122 L.Ed.2d 690 (1993). Postconviction counsel also knew much of the information about Zeitvogel's mental deficiencies and general history contained in the unproduced records because Zeitvogel's mother told postconviction counsel about Zeitvogel's epilepsy, brain damage, and learning disabilities before the postconviction hearing. See Barnes, 58 F.3d at 975.

Postconviction counsel could have obtained the state hospital and prison records if he had acted reasonably and diligently, but he made no effort to obtain them. Rather than requesting the records from the...