Richard S. Zeitvogel v. Paul Delo ( 1996 )

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No. 94-2976WM
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Richard S. Zeitvogel, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Paul Delo, *
*
Appellee. *
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Submitted: April 10, 1995
Filed: February 28, 1996
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Before FAGG, HENLEY, and BOWMAN, Circuit Judges.
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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 (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 (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
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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 (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, 116 S. Ct. 246 (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 (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). 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
(1991); Keeney, 504 U.S. at 11; Joubert v. Hopkins, No. 94-3687,
1996 WL 26673, at *7 (8th Cir. Jan. 25, 1996); Nave v. Delo, 62
F.3d 1024, 1032 (8th Cir. 1995).
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
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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); 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. 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
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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, 116 S. Ct. 435 (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 (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, 113
S. Ct. 1301 (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 hospitals or Zeitvogel's prison file,
postconviction counsel sent the Missouri Department of Corrections
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a vague letter asking for "the psychiatric report from
[Zeitvogel's] evaluation at the Missouri State Penitentiary." In
response to counsel's letter, the State sent counsel one document,
an updated psychiatric evaluation of Zeitvogel, conducted to give
a current assessment of Zeitvogel's condition. Postconviction
counsel should have immediately realized the updated evaluation was
not one of the state hospital records Dr. Daniel had mentioned,
because it was dated after counsel's letter requesting Zeitvogel's
records. Further, the updated evaluation confirmed counsel's
belief that the State had other relevant records, because the
evaluation referred to reports from earlier examinations of
Zeitvogel. The State did not tell counsel it had no other records
on Zeitvogel, but sent the current evaluation with a cover letter
stating "We hope this information will suffice." Postconviction
counsel took no steps to obtain more records. Zeitvogel's
appointed habeas counsel made the effort and obtained them "pretty
easily" by filing a simple application for an order authorizing
counsel's access to the records.
If postconviction counsel had acted reasonably and diligently,
he could have raised the Brady and guilt-phase ineffective
assistance claims, developed and presented the evidence contained
in the unproduced records and expert testimony based on them, and
called family members and others acquainted with Zeitvogel in the
state postconviction hearing. In anticipation of the hearing,
postconviction counsel had Zeitvogel examined by Dr. Daniel.
Although Dr. Daniel decided Zeitvogel did not have any mental
impairment affecting his criminal behavior, Dr. Daniel's opinion
letter also stated Zeitvogel's history suggested epilepsy and if
counsel could confirm Zeitvogel was epileptic, a neurological
examination might be helpful. Postconviction counsel knew from
Zeitvogel's mother that Zeitvogel had epilepsy, but did not consult
a neurologist. Postconviction counsel could have obtained the
unproduced records mentioned by Dr. Daniel several months before
the postconviction hearing and asked the doctor to re-evaluate
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Zeitvogel, or could have developed other expert testimony about the
significance of the evidence in the records. Instead,
postconviction counsel told the court Dr. Daniel's opinion was not
helpful because the doctor said Zeitvogel's epilepsy had no effect
on Zeitvogel's criminal conduct. Rather than presenting expert
testimony about Zeitvogel's mental health, the postconviction
attorney agreed with the State prosecutor's assessment that
Zeitvogel had no psychiatric defects at the time of trial.
In our view, the blame for Zeitvogel's procedural default
falls squarely on Zeitvogel's postconviction counsel rather than
the State. At the time of the postconviction hearing,
postconviction counsel either had or reasonably could have had a
sufficient factual basis to assert the defaulted Brady and guilt-
phase ineffective assistance claims, and could have presented the
additional evidence supporting the penalty-phase ineffective
assistance claim. See McCleskey, 499 U.S. at 498; Barnes, 58 F.3d
at 975. Postconviction counsel knew about the records the State
failed to produce, knew much of information they contained, and
could have obtained the records if had he acted reasonably and
diligently. Had counsel obtained the records, he could have
developed any necessary expert testimony at the postconviction
hearing. Indeed, in their habeas pleadings, Zeitvogel's habeas
counsel recognize postconviction counsel knew of Zeitvogel's mental
deficiencies but failed to investigate and present them at the
postconviction hearing. It is well-established that the
ineffectiveness of state postconviction counsel cannot excuse
procedural default. Sidebottom v. Delo, 46 F.3d 744, 751 (8th
Cir.), cert. denied, 116 S. Ct. 144 (1995). Postconviction counsel
himself admits that after he interviewed Zeitvogel and Zeitvogel's
mother, he realized "a reasonably competent [trial] defense . . .
would [have] involve[d] investigation of [Zeitvogel's epilepsy and
related deficiencies]." Nevertheless, postconviction counsel did
not raise or fully develop the supporting facts for the now-
defaulted ineffective assistance claims based on trial counsel's
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failures during the guilt and penalty phases. We thus conclude the
State's failure to produce the hospital and prison records is not
cause for Zeitvogel's procedural default.
Besides the State's failure to produce records, Zeitvogel
contends the State's issuance of execution warrants during his
postconviction proceedings is cause for his default.
Postconviction counsel obtained several stays of execution for
Zeitvogel. Each time the Missouri Supreme Court granted a stay,
the court postponed Zeitvogel's execution for about thirty days and
issued a new warrant for his execution, as the court commonly does
in death penalty cases. Issuance of the warrants furthered the
court's legitimate interest in ensuring Zeitvogel's postconviction
proceeding was moving forward and was not being used solely as a
delay tactic. Nevertheless, Zeitvogel contends the warrants
interfered with his ability to investigate and present claims at
the postconviction hearing, because postconviction counsel was
forced to spend a great deal of his time on obtaining stays.
Zeitvogel has failed to show the warrants prevented him from
raising and presenting any claim in the postconviction proceedings,
however. LaRette, 44 F.3d at 687.
The record does not support Zeitvogel's assertion that his
postconviction counsel was too busy handling execution warrants to
discover and raise the defaulted claims or develop the additional
evidence. It is relatively easy to move for a stay in Missouri.
Zeitvogel's postconviction counsel merely had to obtain a
certificate from the postconviction court stating additional time
was needed to prepare the case, and then present the certificate to
the Missouri Supreme Court, which routinely granted Zeitvogel's
motions for stays. In his brief, Zeitvogel describes two occasions
when his counsel had difficulty tracking down a judge to sign the
necessary certificate, but the record shows counsel brought the
close calls on himself by dashing to the courthouse at the last
minute. Postconviction counsel states in his affidavit, without
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providing any specifics, that his heavy workload made moving for
stays especially burdensome. Even if postconviction had limited
time to spend on Zeitvogel's case, Zeitvogel's mother, Dr. Daniel,
and the State gave postconviction counsel ample information about
potential claims and available evidence, but postconviction counsel
failed to follow through on the information handed to him on a
silver platter.
Zeitvogel's efforts to blame his procedural default on the
State fail as a matter of law. Thus, the district court properly
refused to conduct an evidentiary hearing on the issue of cause,
Oxford, 59 F.3d at 748, and on Zeitvogel's defaulted Brady claim
and his defaulted guilt-phase ineffective assistance claim, Pollard
v. Delo, 28 F.3d 887, 888-89 (8th Cir.), cert. denied, 115 S. Ct.
518 (1994). For the same reason, Zeitvogel is not entitled to a
federal hearing to supplement the postconviction court's record on
his penalty-phase ineffective assistance claim. Battle, 64 F.3d at
354-55; Sidebottom, 46 F.3d at 750-51. Given that the district
court properly refused to conduct an evidentiary hearing, we reject
Zeitvogel's contention that the district court should have
appointed experts and investigators to help Zeitvogel present his
claims.
Having disposed of the main thrust of Zeitvogel's appeal, we
turn to his remaining contentions. At trial, Zeitvogel's counsel
presented the testimony of inmates Chester Bettis and Charles
Stevenson to support Zeitvogel's claim that he killed Dew in self-
defense. Bettis and Stevenson testified Dew and Zeitvogel were
fighting in their cell on the day of Dew's murder and Dew
threatened to kill Zeitvogel. Zeitvogel now argues his trial
counsel was ineffective for not calling several additional inmates
to testify in support of Zeitvogel's self-defense claim. Zeitvogel
raised this ineffective assistance claim during his state
postconviction proceedings, but postconviction counsel did not call
the additional inmates as witnesses.
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To show counsel was ineffective, Zeitvogel must show his
attorney's actions prejudiced him, that is, a reasonable
probability that the jury would have reached a different verdict
had it heard the additional testimony. Foster v. Delo, 39 F.3d
873, 877 (8th Cir. 1994), cert. denied, 115 S. Ct. 1719 (1995). We
have reviewed the trial attorney's testimony at the postconviction
hearing and agree with the postconviction court that the additional
inmates could have done little more than rehash the testimony given
by Bettis and Stevenson. See Zietvogel, 766 S.W.2d at 468, 470.
Zeitvogel argues the inmates who did not testify could have
strengthened his self-defense claim by testifying Dew had a motive
to attack Zeitvogel: Dew believed Zeitvogel had informed prison
authorities about Dew's attack on another inmate in the prison
chapel, and Dew wanted to get back at Zeitvogel for snitching on
him. We will not consider this factual argument, however, because
it was not presented to the state court. Flieger v. Delo, 16 F.3d
878, 884-85 (8th Cir.), cert. denied, 115 S. Ct. 355 (1994).
During the postconviction hearing, Zeitvogel's postconviction
counsel did not present any evidence about Dew's motive to attack
Zeitvogel, the chapel incident, or any testimony from the inmates
about revenge. Indeed, the prisoners' affidavits discussing Dew's
motive are dated nearly seven years after the state postconviction
hearing. We conclude Zeitvogel has not shown his trial counsel's
failure to call the additional witnesses prejudiced him. See
Strickland v. Washington, 466 U.S. 668, 694 (1984); Foster, 39 F.3d
at 877.
Zeitvogel next contends the trial court violated due process
by requiring Zeitvogel to remain shackled while in the courtroom.
Although Zeitvogel has complained of the shackling in other ways,
Zeitvogel did not raise this due process argument in the state or
district court, so we need not consider it. Jones v. Caspari, 975
F.2d 460, 461 (8th Cir.), cert. denied, 113 S. Ct. 345-46 (1992).
The argument is meritless, anyway. The trial court acted well
within its discretion in deciding restraints were necessary to
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prevent Zeitvogel from escaping and to protect others in the
courtroom. At the time of trial, Zeitvogel had murder, rape, and
assault convictions and had escaped from state custody once before.
See Gilmore v. Armontrout, 861 F.2d 1061, 1071 (8th Cir. 1988),
cert. denied, 490 U.S. 1114 (1989). Further, the trial court's
decision to require restraints did not prejudice Zeitvogel. Even
without seeing the shackles, the jury would have learned from the
trial evidence that Zeitvogel was an inmate. See Estelle v.
Williams, 425 U.S. 501, 507 (1976). After all, Zeitvogel killed
Dew in the maximum security area of the Missouri State
Penitentiary. Because the trial court's ruling requiring
restraints was clearly proper, we reject Zeitvogel's contention
that trial counsel was ineffective for not objecting to the ruling.
This ineffective assistance claim is procedurally barred as well
because Zeitvogel abandoned the claim during his state court appeal
from the denial of postconviction relief. Nave, 62 F.3d at 1030.
Zeitvogel next challenges the penalty-phase jury instructions.
Jury instruction eighteen stated Zeitvogel would not be eligible
for the death penalty unless the jury found the existence of at
least one of three aggravating circumstances, including that
Zeitvogel had a substantial history of serious assaultive
convictions, and that at the time of Dew's murder, Zeitvogel had an
earlier capital murder conviction. Zeitvogel contends this
instruction improperly listed these two separate aggravating
circumstances when only one was authorized by the controlling
Missouri statute, Mo. Rev. Stat. § 565.012.2 (Supp. 1983). See
Zeitvogel, 707 S.W.2d at 368. During Zeitvogel's direct appeal,
however, the Missouri Supreme Court held all the aggravating
circumstances were properly given under Missouri law. Id. We
defer to the Missouri Supreme Court's interpretation of its state
law. Baker v. Leapley, 965 F.2d 657, 659 (8th Cir. 1992).
Instructions eighteen and nineteen both mention Zeitvogel's
earlier murder conviction, and Zeitvogel argues this "duplication"
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violates the Eighth Amendment. We disagree. Instruction eighteen
narrowed the class of capital murderers eligible for the death
penalty. See Zant v. Stephens, 462 U.S. 862, 878 (1983).
Instruction nineteen instructed the jury to consider all the
evidence in deciding whether Zeitvogel should actually receive the
death penalty. The jury was entitled to consider Zeitvogel's
criminal record in making its sentencing determination. Id. at
888.
Because instructions eighteen and nineteen were proper,
Zeitvogel's trial counsel was not ineffective for failing to object
to them. Further, Zeitvogel never raised this ineffective
assistance issue in the Missouri courts. Habeas relief is not
warranted in any event because the alleged error did not infect the
entire trial and render it fundamentally unfair, nor was the
alleged error a fundamental defect resulting in a complete
miscarriage of justice. Baker, 965 F.2d at 659; Kennedy v. Delo,
959 F.2d 112, 118 (8th Cir.), cert. denied, 113 S. Ct. 168 (1992).
Finally, Zeitvogel contends the Missouri Supreme Court did not
adequately review his sentence to ensure its proportionality to
sentences imposed on defendants in similar cases, in violation of
the Eighth and Fourteenth Amendments. The Missouri Supreme Court
reviewed Zeitvogel's sentence during his direct appeal, however,
and addressed and decided the proportionality issue in its opinion.
Zeitvogel, 707 S.W.2d at 370-71. Under our recent decisions, this
is the end of our inquiry. See LaRette, 44 F.3d at 688; Foster, 39
F.3d at 882; Murray v. Delo, 34 F.3d 1367, 1376-77 (8th Cir. 1994),
cert. denied, 115 S. Ct. 2567 (1995).
In conclusion, Zeitvogel's contentions fail. Because
Zeitvogel cannot show cause for his procedural default, Zeitvogel
is not entitled to a federal evidentiary hearing on his main
claims. Zeitvogel's remaining contentions are procedurally barred
or meritless. We thus affirm the district court's denial of
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Zeitvogel's habeas petition.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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