Norris Holder v. United States

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 10-1304
___________________________

Norris G. Holder

l Plaintiff - Appellant

v.

United States of America

lllllllllllllllllllll Defendant - Appellee
____________

Appeal from United States District Court
for the Eastern District of Missouri – St. Louis
____________

Submitted: November 15, 2012
Filed: July 31, 2013
____________

Before RILEY, Chief Judge, WOLLMAN and MELLOY, Circuit Judges.
____________

MELLOY, Circuit Judge.

A jury convicted Norris Holder and sentenced him to death for robbing a bank
and killing a bank security guard in St. Louis, Missouri. Following an unsuccessful
appeal before this Court, Holder filed a motion pursuant to 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence, which the district court1 denied. Holder then
moved pursuant to Federal Rule of Civil Procedure 59(e) to alter or amend the district
court’s judgment, and the district court denied that motion as well. Before us now is
Holder’s appeal of the district court’s denial of his Rule 59(e) motion. For the reasons
set forth below, we affirm in all respects.

I. Background

A. Facts

1. Bank Robbery

On the morning of March 17, 1997, Holder and Billie Jerome Allen robbed the
Lindell Bank and Trust Company ("the Bank") in St. Louis, Missouri. The two men
arrived at the Bank shortly after 10:30 AM in a stolen van that they had doused with
gasoline and planned to burn after fleeing to a second getaway vehicle. Both men
wore dark clothes and ski masks, and Holder also wore a bullet-proof vest. The men
were heavily armed with SKS semiautomatic rifles with bayonets and several
magazines of hollow-point ammunition capable of penetrating vehicles.

Evidence presented at trial showed that Allen was the first man to enter the
Bank and that he began shooting his rifle immediately, killing security guard Richard
Heflin. Holder followed closely behind Allen and proceeded to jump over the bank
counter and retrieve money from the teller drawers. The two men then exited the
Bank and drove away in the van, taking with them $51,949.00. While en route to a
second getaway vehicle, the van caught fire and Holder and Allen were forced to
abandon it in a large urban park in St. Louis. Allen escaped on foot, but Holder, who

1
The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.

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wears a prosthesis as a result of a train accident in 1991 that severed one of his legs,
was captured by law enforcement and arrested.

An FBI agent interviewed Holder the night of the bank robbery, at which time
Holder confessed that he planned and committed the robbery with Allen. Holder
fashioned the robbery after the movies Heat and Set It Off, both of which Holder had
watched within ten days prior to the robbery and feature forceful, takeover-style bank
robberies by heavily armed robbers. Holder and Allen chose the Bank because Holder
had been a customer there since January 1996 and was familiar with its layout, and
because it is near a highway. The two men visited the Bank four days before the
robbery, during which time Holder made a withdrawal and Allen sat in the lobby.
Holder stated during his interview that he and Allen had agreed that they would not
fire their rifles and that he did not intend for anyone to get hurt.

A grand jury indicted Holder for robbery by force or violence resulting in death
in violation of 18 U.S.C. § 2113(a) and (e) (“Count I”) and carrying a firearm during
a crime of violence and murder resulting from a crime of violence in violation
18 U.S.C. §§ 924(c)(1)(A) and (j)(1) (“Count II”).

2. Guilt Phase of Trial

The guilt phase of Holder's trial began on March 10, 1998.2 Holder was
represented primarily by attorneys Charles Shaw3 and Jennifer Herndon. Shaw had
entered an appearance on Holder's behalf on March 25, 1997, but Herndon did not join
the defense effort until February 1998, approximately thirty days before the trial
began. Shaw served as lead counsel while Herndon dealt primarily with the penalty
phase of the trial.

2
Holder and Allen were each indicted for the same offenses but tried separately.
3
Attorney Shaw is now deceased.

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 Because of the strong evidence against Holder, Shaw decided that it would be
best to admit to Holder's participation in the robbery and to argue that Holder lacked
the mens rea for imposition of the death penalty, i.e., that Holder was unaware of any
serious risk of death attending his actions and lacked the specific intent to kill. In
support of this strategy and pursuant to Shaw's advice, Holder testified in his own
defense. Holder maintained at trial, as he had when he was interviewed the night of
the robbery, that he and Allen agreed that there would be no shooting and that he did
not intend for anyone to be injured. On cross-examination, however, Holder admitted
that he loaded his rifle the night before the robbery and placed a bullet in the firing
chamber so that he could fire the rifle by simply squeezing the trigger. Additionally,
notwithstanding Holder's claim that Allen was the instigator of the robbery, Holder
also admitted that he supplied both of the rifles used in the robbery, as well as other
weapons and ammunition that were placed in secondary getaway vehicles that Holder
and Allen intended to use after they burned and deserted the van.

A government ballistics expert testified that there were sixteen shell casings
found in the Bank. Of the sixteen casings, eight were positively identified as having
been fired from Allen's rife; three were consistent with having been fired by Allen's
rifle; three could not have been fired by Allen's rifle; and two could have been fired
by either Holder or Allen's rifles. The bullets recovered from the wounds to Heflin's
abdomen and kidney were positively identified as being fired by Allen's rifle, though
it could not be determined whether the bullets and bullet fragments in Heflin's liver,
thighs, and knee originated from Allen's rifle or Holder's rifle. There is no suggestion
that anyone other than Holder or Allen fired a shot in the Bank. Holder did not call
his own ballistics expert to refute the government's testimony, but he denied ever
firing his rifle inside the Bank.

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 At the conclusion of the guilt phase of the trial, the jury convicted Holder of
Count I and Count II.4

3. Penalty Phase of Trial

At the penalty phase, the government submitted two statutory aggravating
factors (including a pecuniary-gain aggravating factor relating to Heflin's murder) and
four nonstatutory aggravating factors. The jury unanimously found both statutory
aggravating factors and three of the four nonstatutory aggravating factors to be
present; the jury did not unanimously reach a conclusion regarding the fourth
nonstatutory aggravating factor, which pertained to Heflin's personal characteristics
and the impact of his death upon his family.

Holder submitted two statutory mitigating factors and seventeen nonstatutory
mitigating factors (including a claim that he did not fire the shots that resulted in
Heflin's death). Among the mitigating evidence that Holder relied upon was
testimony regarding his difficult upbringing, including being raised by an absent
father and drug-addicted mother; the 1991 train accident that severed one of his legs
and the effect that it had on him; and a 1992 assault during which he was struck in the
head with a brick. Herndon retained Dr. Steven Rothke, a psychologist who
specializes in neuropsychology and rehabilitation psychology, to assess the impact on
Holder of the train accident and assault. Dr. Rothke testified that Holder was
"cognitively intact" and found "no significant neurobehavioral signs of head injury or
reduced capacity to control his actions and responses." Herndon also retained forensic
psychologist Dr. Thomas Reidy to opine regarding Holder's future dangerousness. Dr.
Reidy's written report concluded that Holder's "estimated risk of violence in prison
does not exceed the known relevant base rates."

4
Allen was also convicted of Count I and Count II in his separate trial.

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 The government also obtained a mental-health expert, Dr. Richard Wetzel, to
examine Holder. Dr. Wetzel did not testify at trial, but submitted a written report that
contained substantially the same material findings as Dr. Rothke, i.e., that Holder did
not exhibit any cognitive dysfunction from brain injury or any psychiatric disorders.
Herndon obtained permission to have a third psychologist, Dr. Anthony Semone,
evaluate Holder and review Dr. Wetzel's findings. However, Dr. Semone did not
perform either of these tasks until after Holder was sentenced.

Ultimately, no juror found either statutory mitigating factor to be present, and
the jurors split on the nonstatutory mitigating factors—no juror found five of the
factors to be present; twelve jurors found three of the factors to be present; and as few
as two and as many as eleven found the various other nine nonstatutory mitigating
factors. The jury returned death sentences for Holder on both counts.5

4. Direct Appeal and Post-Conviction Proceedings

Holder appealed the verdict, arguing, inter alia, that his convictions were invalid
due to flawed jury instructions, that certain aggravating factors were
unconstitutionally vague, and that the district court erred in admitting four graphic
autopsy photographs. In a consolidated case with Allen's appeal from his separate
convictions, see supra notes 2, 4, and 5, we rejected each of Holder's arguments and
affirmed the jury's verdict. United States v. Allen, 247 F.3d 741, 795 (8th Cir. 2001)
("Allen I"). Holder then petitioned the U.S. Supreme Court for certiorari, and his
petition was denied.6 Holder v. United States, 539 U.S. 916 (2003).

5
Allen was sentenced to life in prison for Count I and received a death sentence
for Count II.
6
Allen also petitioned the Supreme Court for certiorari. The Court granted
Allen's petition, vacated this Court's opinion in the consolidated appeal (Allen I), and
remanded Allen's case in view of Ring v. Arizona, 536 U.S. 584 (2002). Allen v.
United States, 536 U.S. 953 (2002). Ring held that the statutory aggravating factors

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 Holder subsequently moved pursuant to 28 U.S.C. § 2255 for the district court
to vacate, set aside, or correct his sentence. Holder raised three grounds for relief:
(1) the indictment failed to include a single statutory aggravating factor in violation
of his Fifth Amendment Indictment Clause right; (2) the jury improperly considered
the pecuniary-gain statutory aggravating factor; and (3) his counsel was ineffective
in multiple respects, including a claim that counsel failed to adequately investigate his
mental health. The district court held a three-day evidentiary hearing on Holder's
motion, but refused to hear any evidence on the mental-health issue.7

The district court denied Holder's § 2255 motion on all claims. Holder
subsequently moved pursuant to Federal Rule of Civil Procedure 59(e) for the district
court to alter or amend its judgment on his § 2255 motion, and the district court
denied that motion as well. Holder then filed this appeal.

B. Standard of Review

"Rule 59(e) motions serve the limited function of correcting 'manifest errors of
law or fact or to present newly discovered evidence.'" United States v. Metro. Saint
Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006) (quoting Innovative Home

that make a defendant eligible for the death penalty must be found by a jury, not by
a judge, in accordance with the Sixth Amendment. 536 U.S. at 609. Holder's
constitutional claim relating to the issue in Ring is discussed infra at Part IV.
7
The evidentiary hearing was limited to the following issues: (1) "Violation of
the Fifth Amendment Indictment Clause;" (2) "Jury's Improper Consideration of the
Pecuniary Gain Statutory Aggravator;" (3) "Counsel's Unreasonable and Prejudicial
Failure to Challenge the Indictment;" (4) "Trial Counsel's Unreasonable and
Prejudicial Advice to Testify;" (5) "Trial Counsel's Unreasonable and Prejudicial
Concession of Guilt During Opening Statement and Closing Argument;" and (6)
"Trial Counsel's Prejudicial Sleeping During Critical Stages of the Proceedings."
Holder v. United States, No. 4:03CV00923, slip op. at 1 (E.D. Mo. Dec. 2, 2004)
("Order Limiting the Scope of the § 2255 Evidentiary Hearing").

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Health Care v. P.T.–O.T. Assoc. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir.
1998)). "Such motions cannot be used to introduce new evidence, tender new legal
theories, or raise arguments which could have been offered or raised prior to entry of
judgment." Innovative Home Health Care, 141 F.3d at 1286. "[A]ppeal from the
denial of a Rule 59(e) motion allows challenge of the underlying ruling that produced
the judgment[,]" Prince v. Kids Ark Learning Ctr., LLC, 622 F.3d 992, 994 (8th Cir.
2010), which in this case is the district court's denial of Holder's § 2255 motion.
Accordingly, our review is de novo. Ortiz v. United States, 664 F.3d 1151, 1164 (8th
Cir. 2011) (standard of review for § 2255 motion).

Holder raises five issues on appeal. Three issues pertain to the alleged
ineffective assistance of his trial counsel. The fourth issue pertains to the district
court's refusal to grant an evidentiary hearing regarding defense counsel's
investigation of Holder's mental health. The fifth issue pertains to whether a
constitutional violation of the Fifth Amendment Indictment Clause was structural
error or prejudicial error. We address each issue in turn below.

II. Ineffective Assistance of Counsel

Holder alleges that his trial counsel was constitutionally ineffective in three
ways. Specifically, Holder claims that his counsel (1) "failed to assure adversarial
testing of the government's case by conceding that Mr. Holder participated in an
armed robbery resulting in a killing, and prejudicially advising [Holder] to testify in
support of counsel's non-defense to the charges"; (2) "failed to consult an independent
ballistics expert before choosing a doomed theory that [Holder] fired no shots" in the
Bank; and (3) "fail[ed] to object to the court's submission of the pecuniary gain
aggravator where the submitted instruction failed to specify that the money-generating
'offense' referred to the murder and not the underlying robbery."

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 Ineffective assistance of counsel claims are governed by the two-pronged test
in Strickland v. Washington, 466 U.S. 668 (1984). "For a claim to be cognizable,
[1] counsel's performance must rise to a level of constitutional deficiency, and [2] the
defendant must show a reasonable probability that, 'but for counsel's unprofessional
errors, the result of the proceeding would have been different[,]'" Eastin v. Hobbs, 688
F.3d 911, 915 (8th Cir. 2012) (quoting Strickland, 466 U.S. 668 at 695)), i.e., that the
defendant was prejudiced by the deficiency, Alaniz v. United States, 351 F.3d 365,
367–68 (8th Cir. 2003). An attorney's performance is "deficient" when he makes
errors "so serious that counsel was not functioning as the 'counsel' guaranteed . . . by
the Sixth Amendment." Strickland, 466 U.S. at 687. "In weighing whether trial
counsel's performance was constitutionally deficient, 'a court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance.'" Close v. United States, 679 F.3d 714, 716 (8th Cir. 2012)
(quoting Strickland, 466 U.S. at 689).

"A deficiency is prejudicial when there is a reasonable probability, that is, one
'sufficient to undermine confidence in the outcome,' that the result of the trial would
have been different but for the deficiency." Id. (quoting Strickland, 466 U.S. at 694)).
As a reviewing court, our job is not to "consider the attorney error in isolation, but
instead [to] assess how the error fits into the big picture of what happened at trial."
Marcrum v. Luebbers, 509 F.3d 489, 503 (8th Cir. 2007) (citing Strickland, 466 U.S.
at 696). A finding that no prejudice exists is sufficient to conclude that counsel was
not constitutionally ineffective—we need not first make a determination regarding
deficiency. See DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000).

With this framework in mind, we turn to Holder's specific claims of ineffective
assistance.

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 A. Conceding the Robbery

Holder's first claim is that counsel Shaw was ineffective for admitting that
Holder participated in the armed bank robbery. Specifically, Holder claims that Shaw
did not understand that the charges against him were capital-eligible offenses and that
by conceding Holder's participation in a robbery that resulted in death, Shaw sealed
his fate. Holder claims that Shaw was deficient for pursuing a strategy of concession
and that he suffered prejudice as a result.

1. Proper Standard for Ineffectiveness

Holder first argues that Shaw was ineffective under United States v. Cronic, 466
U.S. 648 (1984), and that we need not analyze Shaw's trial conduct under the
Strickland standard. Cronic set forth three situations in which counsel was so plainly
deficient that prejudice can be presumed. Id. at 659–60 (noting that in certain
circumstances "a presumption of prejudice is appropriate without inquiry into the
actual conduct of the trial"); United States v. White, 341 F.3d 673, 677 (8th Cir. 2003)
("There are instances when counsel's errors are so great or the denial of counsel is so
complete as to create a presumption of prejudice, eliminating the need to prove
Strickland prejudice." (citing Cronic, 466 U.S. at 659)). One scenario is when
"counsel entirely fails to subject the prosecution's case to meaningful adversarial
testing." Cronic, 466 U.S. at 659. Here, Holder claims that Shaw misunderstood the
nature of the charges against him and that Shaw's concession of the robbery resulted
in "a complete breakdown in the adversarial process."

Contrary to Holder's claim, however, the record demonstrates that Shaw did
understand that the charges were capital-eligible offenses. When the district court
inquired at trial as to whether Holder wanted to testify in his own defense, Shaw
stated: "I gave [Holder] my advice that because of the nature of the punishment that
I thought the best thing he could to do [sic] would be testify on his own behalf."

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Holder v. United States, No. 4:03CV00923, 2008 WL 2909648, at *32 (E.D. Mo.
July 22, 2008) ("Order Denying § 2255 Relief"). Accordingly, rather than engaging
in the "useless charade" of attempting to prove Holder not guilty of a crime for which
he had "no bona fide defense to the charge," Cronic, 466 U.S. at 656 n.19, Shaw's trial
strategy was to argue that Holder lacked the requisite mental state for imposition of
the death penalty.8 See Order Denying § 2255 Relief, 2008 WL 2909648, at *30
("[Shaw] chose a strategy that focused on [Holder's] mental state, under the
instruction, that required him to be aware of a serious risk of death.").

In Florida v. Nixon, the Supreme Court held that defense counsel's admission
of his client's guilt in a capital case was properly analyzed under Strickland, not
Cronic. 543 U.S. 175, 178 (2004). The Court recognized that capital cases involve
specialized circumstances:

Although [a concession of guilt] in a run-of-the-mine trial
might present a closer question, the gravity of the potential
sentence in a capital trial and the proceeding's two-phase
structure vitally affect counsel's strategic calculus.
Attorneys representing capital defendants face daunting
challenges in developing trial strategies, not least because
the defendant's guilt is often clear. . . . In such cases,
avoiding execution [may be] the best and only realistic
result possible.

Id. at 190–91 (second alteration in original) (citation and internal quotation marks
omitted).

Here, the district court found that Shaw based his decision to admit that Holder
robbed the Bank on the strong evidence against Holder and on the theory that honesty

8
To be convicted of Count I and Count II, the government had to prove that
Holder had been "aware of a serious risk of death attending his conduct."

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and candor with the jury was the best approach to saving Holder's life. Order Denying
§ 2255 Relief, 2008 WL 2909648, at *31. In denying Holder's § 2255 motion, the
district court noted the following:

The defense team faced a daunting task in preparing and
presenting a defense for [Holder]. Independent credible
witnesses were available to testify that [Holder], over a
period of several months, planned to rob a bank. Witnesses
saw [Holder] plan to purchase or have purchased for him a
shotgun and an assault rifle with an attached bayonet and
banana clip, described as used in the robbery by a person in
the location of the Bank where the robber took money from
the teller drawers. . . . The two robbers fled in a van
followed by a lawyer to the location where the van
exploded in flames and [Holder] was observed as being on
fire. [Holder] confessed to the robbery, identified the other
robber who was arrested, and always consistently stated he
planned for no one to get hurt and he was sorry for the
death of the guard. These facts, known going into the trial,
limited the options in defending [Holder].

Id. at *29.

The district court also found that, despite conceding the fact of Holder's
participation in the robbery, Shaw "challenged the government's case by
cross-examining witnesses, presenting defense witnesses, and de-emphasizing
[Holder's] role in planning the robbery, and emphasizing that [Holder] was not the one
who fired the fatal shots at Heflin." Id. at *35; see id. at *29 ("[Shaw] skillfully and
consistently presented evidence and cross-examined witnesses, to show . . . that the
evidence was weak that [Holder] fired shots at Heflin and [Shaw] continuously
focused the jury's attention on the undisputed evidence that [Holder] believed no one
would be injured."); id. at *31 ("[C]ounsel Shaw disputed any malice on the part of

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[Holder] . . . ."); id. at *30 (noting that Shaw "always argued" that Holder believed
"that there was no risk of death").

Based on the district court's findings, we reject Holders' contention that Cronic's
presumption applies simply because Shaw conceded the all-but-undisputable fact of
his participation in the robbery. See Haynes v. Cain, 298 F.3d 375, 381–82 (5th Cir.
2002) (Cronic standard does not apply where defense counsel conceded the
underlying rape and robbery in view of "nearly conclusive proof" that the defendant
committed the crimes, but "remained active at trial, probing weaknesses in the
prosecution's case on the issue of intent"); see also Bell v. Cone, 535 U.S. 685,
696–98 (2002) (stating that Cronic's per se rule applies only when "counsel fail[s] to
oppose the prosecution throughout [a] . . . proceeding as a whole," not merely "at
specific points" (emphasis added)); White, 341 F.3d at 678 ("The failure to oppose the
prosecution's case must involve the entire proceeding, not just isolated portions.").

2. Application of Strickland Standard

Shaw was also not constitutionally ineffective as counsel under the Strickland
standard. In Lingar v. Bowersox, we held that defense counsel's decision to concede
the physical elements of second-degree murder and to argue that his client lacked the
mens rea necessary for a capital-murder conviction was not constitutionally deficient.
176 F.3d 453, 458–59 (8th Cir. 1999). In determining that "counsel's concession was
a reasonable trial strategy," id. at 459, we stated the following:

[T]he decision to concede guilt of the lesser charge of
second-degree murder was a reasonable tactical retreat
rather than a complete surrender. The tactic did not
preclude [defendant] from maintaining his innocence on the
first-degree murder charge, and if successful, would have
permitted Lingar to avoid the death penalty. Further,
counsel could retain some credibility and gain an advantage

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 by winning the jury's trust. Even if the jury convicted
[defendant] of first-degree murder, the jury might then be
more sympathetic to defense witnesses testifying in the
penalty phase that [defendant] deserved mercy. Given the
overwhelming evidence, [defendant] could not credibly
deny involvement in [the victim's] killing, and denying all
involvement could inflame the jury and incite it to render
a death sentence. Defense counsel had no viable option.

Id. (citations omitted).

Here, the district court found that the evidence of Holder's involvement in the
robbery was "overwhelming," Order Denying § 2255 Relief, 2008 WL 2909648,
at *34, and that "Shaw presented [Holder's] case in the only reasonable manner
possible," id. at *30. Specifically, the district court found that Shaw "employed a
sound trial strategy of admitting [Holder's] involvement in the crime in order to gain
credibility in arguing [Holder's] lack of intent and his belief that no one would be
harmed, to increase the chance of leniency during the penalty phase." Id. at *35. In
according great deference to trial counsel's decisions, we cannot say that Shaw was
constitutionally deficient for employing a reasonable trial strategy aimed at sparing
Holder's life.

Notably, despite claiming that Shaw was ineffective as counsel, Holder has not
offered any alternative theory of the case under which he would have been found not
guilty based on the evidence introduced at trial and his admissible confession given
the night of the robbery. Thus, even if Shaw was unaware of the possible
consequences to Holder of conceding the robbery charges against him, as alleged—a
conclusion that is contradicted by the record, see id. at *30 (noting that Shaw's defense
strategy was premised on avoiding the death penalty)—Holder has not shown that he
suffered any prejudice, and "[s]heer outcome determination . . . [is] not sufficient to
make out a claim under the Sixth Amendment." Lockhart v. Fretwell, 506 U.S. 364,
370 (1993).

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 For the reasons set forth above, we reject Holder's claim that Shaw was
constitutionally ineffective for conceding his participation in the robbery.

B. Ballistics Expert

Holder's second ineffective-assistance claim is that Shaw failed to obtain an
independent ballistics expert to testify at trial. The precise nature of this claim has
evolved throughout Holder's pursuit of post-conviction relief. In his § 2255 motion,
Holder asserted a failure-to-dispute theory, i.e., that "[t]rial counsel's failure to
properly investigate, consult or offer testimony of a ballistic expert to contest the
government's expert's opinion led the jury to believe that petitioner fired his weapon
inside the bank based on opinions of the government's expert." (Emphasis added.)
In denying relief, the district court characterized the claim as follows: "[Holder's] . . .
argument is that his trial counsel was ineffective for failing to obtain a ballistic expert
to dispute the Government's evidence that some of the rounds fired during the bank
robbery could have come from the [his] weapon." Order Denying § 2255 Relief,
2008 WL 2909648, at *36 (emphasis added). The district court issued a certificate
of appealability on this issue that stated simply that Holder could appeal his claim that
"counsel failed to obtain a ballistics expert." Id. at *55.

In his subsequent Rule 59(e) motion, however, Holder set forth a failure-to-
confirm theory, i.e., that "the court failed to consider the scenario that a ballistics
expert could have verified [the government expert's] conclusions, and analyze defense
counsel’s performance in that context." (Emphasis added.) Holder maintains this
failure-to-confirm theory on appeal, arguing that "[i]f an independent expert had
confirmed the government’s ballistics analysis, a reasonable attorney would not argue
that Mr. Holder’s weapon was never fired, and would not present the defendant’s
credibility-destroying testimony to that effect." (Emphasis added.)

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 Holder's diametrically opposed positions indicate that attorney Shaw faced a
difficult decision regarding how to deal with the government's ballistics expert at trial.
In such situations, there is a "strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance," Strickland, 466 U.S. at 689, and
"[o]ur scrutiny of counsel's performance must be 'highly deferential[,]'" New v. United
States, 652 F.3d 949, 952 (8th Cir. 2011) (quoting Strickland, 466 U.S. at 690)).
Here, rather than subjecting a defensive ballistics expert to the prosecution's scrutiny,
Shaw elected to discredit the government's expert through what the district court
described as "skillful[] cross-examin[ation]." Order Denying § 2255 Relief, 2008 WL
2909648, at *37. For example, Shaw was able to get the government's expert to make
admissions such as, "I did not come up with any positive result on a bullet or a shell
with [Holder's rifle]," and "[T]here were not sufficient markings [on the shell casings]
that I could definitely say [that the casings came from Holder's rifle]." Id. at *38
(internal quotation marks omitted). We find nothing in the record to suggest that
Shaw's strategy falls outside the wide range of reasonable trial strategy afforded to
counsel.

Nevertheless, even if counsel was deficient for failing to call a ballistics expert,
Holder cannot show that he suffered any prejudice. With respect to Holder's
originally pleaded failure-to-dispute theory, the government presented evidence at trial
that Holder's rifle was found with empty ammunition cartridges, as well as testimony
from a bank teller that Holder fired at least one shot in the Bank. As the district court
recognized, the best possible testimony that Holder could have elicited from a
defensive ballistics expert would have been that the three bullets that the government's
expert identified as not originating from Allen rifle, see supra Part I.A.2, were not
fired from Holder's rifle. See Order Denying § 2255 Relief, 2008 WL 2909648, at
*37. Given the circumstantial evidence to the contrary, however, there is nothing in
the record to indicate that the jury would have reached a different result than it did
after weighing the competing testimonies. See Kennedy v. Kemna, 666 F.3d 472,
477–78 (8th Cir. 2012) (no prejudice from failure to present ballistics evidence where

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"the state's case against [the defendant] was strong" and "the ballistics evidence is, at
best, minimally probative").

With respect to the more recently asserted failure-to-confirm theory, Holder
cannot show that his defense would have been in any different position had a
defensive ballistics expert testified substantially the same as the government's expert
than it was without its own expert. See Wainwright v. Lockhart, 80 F.3d 1226, 1230
(8th Cir. 1996) (no prejudice from failure to have defensive ballistics expert testify at
trial where testimony would have been "consistent" with that of the government's
ballistics expert).

Accordingly, Holder's claim that counsel was constitutionally ineffective for
failing to obtain an independent ballistic expert fails.

C. Pecuniary Gain Factor

Holder's final ineffective-assistance claim is that Shaw failed to object to the
district court's instruction on the pecuniary-gain factor. 18 U.S.C. § 3592 lists several
aggravating factors for a homicide that, if found, render the defendant eligible for the
death penalty. One of these factors is that "[t]he defendant committed the offense as
consideration for the receipt, or in the expectation of the receipt, of anything of
pecuniary value." 18 U.S.C. § 3592(c)(8). In United States v. Bolden, we stated that
"the pecuniary gain factor applies to a killing during the course of a bank robbery only
where pecuniary gain is expected to follow as a direct result of the murder." 545 F.3d
609, 615 (8th Cir. 2008) (emphasis added) (citation and internal quotation marks
omitted).

The district court instructed Holder's jury on the pecuniary-gain factor as
follows:

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 To establish that a defendant committed an offense in the
expectation of the receipt of anything of pecuniary value,
the government must prove that the defendant committed
the offense in the expectation of anything in the form of
money, property, or anything else having some economic
value, benefit, or advantage.

(Emphases added.) This Court previously found no error in a jury instruction that was
identical to the one in this case, except that it substituted "killing or murder" for
"offense." Bolden, 545 F.3d at 616 (stating that "[t]his instruction accurately stated
the law[]" and that "by substituting 'the killing or murder' for the reference to 'the
offense' in § 3592(c)(8), the instruction made clear that the jury could not find this
aggravating factor based solely on [the defendant's] attempt to rob the bank for
pecuniary gain").

Holder claims that his counsel was ineffective for failing to object to the district
court's jury instruction because, unlike the instruction in Bolden, the instruction in this
case did not specify what "offense" had to be motivated by pecuniary gain. Holder
argues that the jury "should have been instructed that, in order to find the existence
of the pecuniary gain aggravator, the government must prove that [Mr.] Holder
committed 'the offense of murder' in expectation of pecuniary gain." (Emphasis
added.) The government concedes that it is now known that this limitation would
have been appropriate, but that counsel was not deficient because the law was
unsettled at the time of Holder's trial in 1998. Holder, on the other hand, contends that
"[w]hile the Bolden opinion was issued well after Mr. Holder's case was decided, the
legal basis for this claim existed at the time of Mr. Holder's trial," and that "counsel
was on notice that the jury should have been specifically instructed that the offense
listed in the pecuniary gain instruction was the 'killing or murder.'"9

9
Holder appears to be concerned with the jury having mistakenly linked
pecuniary gain to only the underlying bank-robbery offense of 18 U.S.C. § 2113 in
Count I. Specifically, Holder argues that "[t]he instruction is defective because it

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 We need not decide the state of law in 199810 or whether counsel was deficient
for failing to object to the jury instruction, however, because Holder cannot show
prejudice. Even if the district court adopted Holder's modification, thus substituting
"killing or murder" for "offense," Holder still cannot show that the jury would have
failed to find that the pecuniary-gain factor applied. The Ninth Circuit's opinion in
LaGrand v. Stewart, 133 F.3d 1253 (9th Cir. 1998) ("LaGrand III"), is instructive.

LaGrand III came to the Ninth Circuit on appeal from the district court's denial
of a habeas petition, in which the petitioner argued that the state court applied an
overly broad standard for applying the pecuniary-gain factor. See LaGrand v. Lewis,
883 F. Supp. 451, 465–66 (D. Ariz. 1995) ("LaGrand II"). In the underlying state
case, the Arizona Supreme Court found that "the reason [the petitioner] stabbed the
victim [during a bank robbery] was because the victim was unable to open the safe,
frustrating the defendant's continuing attempt for pecuniary gain. The defendant's
goal of pecuniary gain caused the murder and the murder was in furtherance of his
goal." State v. LaGrand, 734 P.2d 563, 578 (Ariz. 1987) ("LaGrand I"). In denying
the petitioner's habeas petition, the district court held that it was neither irrational nor

allowed the jury to find the existence of the pecuniary gain statutory aggravating
factor based solely on Mr. Holder's motive for the underlying bank robbery."
(Emphasis added.) However, both Counts of the indictment included capital-eligible
offenses, see 18 U.S.C. § 924(j)(1), and Holder has not argued that "offense" could
have been mistaken for "uses or carries a firearm," as found in 18 U.S.C.
§ 924(c)(1)(A) and charged in Count II of the indictment. Thus, our analysis of the
pecuniary-gain jury instruction is limited to the alleged conflation of "offense" with
the underlying bank robbery.
10
At least one of our sister circuits has since determined that an instruction
regarding the pecuniary-gain factor is erroneous if "offense" is not plainly defined.
United States v. Chanthadara, 230 F.3d 1237, 1264 (10th Cir. 2000) ("The instruction
failed to specify the 'offense' to which it referred was the homicide, not the underlying
robbery, and thereby failed to impose a necessary limitation. Therefore, the instruction
was erroneous.").

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arbitrary of the Arizona Supreme Court to determine that "Petitioner's goal of robbing
the bank so permeated [his] conduct that the murder can be deemed to have been
committed in furtherance of that goal." LaGrand II, 883 F. Supp. at 465. The Ninth
Circuit, in affirming the district court, stated that "[t]he LaGrands threatened the
victims with death in order to obtain entry to the vault. . . . A rational sentencer could
have found the existence of the pecuniary gain aggravating factor." LaGrand III, 133
F.3d at 1260.

This case has facts to support applying the pecuniary-gain factor that are
stronger than the facts of LaGrand. Here, the district court made a finding that Heflin
"was shot by either Allen or [Holder], or both, upon entering the bank, due to Heflin
reaching for his firearm." Order Denying § 2255 Relief, 2008 WL 2909648, at *49
(emphasis added). This finding is not clearly erroneous and, presumably, Holder and
Allen would have not been successful in robbing the bank had they not disarmed
Heflin. Just as in LaGrand, Holder and Allen's "sole purpose of the journey to the
bank was to rob it." LaGrand III, 133 F.3d at 1260. And, like in Bolden, Holder and
Allen "brought . . . loaded []gun[s] to the bank planning to confront the bank guard
before robbing the bank." 545 F.3d at 615–16. Thus, even if the instruction on the
pecuniary-gain factor defined "offense" to be "killing or murder," a reasonable jury
would have still determined that Heflin was killed "to remove an obstacle to
completing the robbery," id. at 616, and that "the killing was committed in the
expectation of receiving pecuniary gain," id.

Accordingly, we reject Holder's claim of ineffective assistance for failing to
object to the district court's jury instruction on the pecuniary-gain factor.

III. Evidentiary Hearing on Mental Health

Holder also argues that the district court erred in denying his request for an
evidentiary hearing regarding whether his counsel was ineffective for allegedly failing

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to adequately investigate his mental-health condition. Specifically, Holder claims that
attorney Herndon employed an unreasonable mitigation strategy by not consulting
with a third psychologist to determine whether the reports of Drs. Rothke and Wetzel
were deficient, and that "[a] reliable and fully-informed trauma diagnosis could have
cast reasonable doubt upon the guilt-phase proposition . . . that Mr. Holder was 'aware
of a serious risk of death attending his conduct.'"

A. Standard of Review

"A petitioner is entitled to an evidentiary hearing on a section 2255 motion
unless 'the motion and the files and the records of the case conclusively show that [he]
is entitled to no relief.'" Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir.
2008) (alteration in original) (quoting 28 U.S.C. § 2255). "No hearing is required,
however, where the claim is inadequate on its face or if the record affirmatively
refutes the factual assertions upon which it is based." Id. (citation and internal
quotation marks omitted).

This Court reviews the district court's decision to deny an evidentiary hearing
for an abuse of discretion. Saunders v. United States, 236 F.3d 950, 952 (8th Cir.
2001). "That standard is somewhat misleading, however, because review of the
determination that no hearing was required obligates us to look behind that
discretionary decision to the [district] court's rejection of the claim on its merits,
which is a legal conclusion that we review de novo." Id. Accordingly, we must
"consider the validity of [a petitioner's] allegation of ineffective assistance of counsel
in order to decide if he is entitled to remand for an evidentiary hearing." Id. (citation
and internal quotation marks omitted).

"The failure of counsel to adequately investigate a petitioner's mental health
history and background can necessitate an evidentiary hearing." Parkus v. Delo, 33

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F.3d 933, 939 n.6 (8th Cir. 1994). Strickland sets forth the framework for evaluating
counsel's actions in a failure-to-investigate claim:

[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations
on investigation. In other words, counsel has a duty to
make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.
In any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness in
all the circumstances, applying a heavy measure of
deference to counsel's judgments.

466 U.S. at 690–91. "[F]ailing to present mitigating evidence may be ineffective
assistance if, due to inadequate trial preparation and investigation, 'counsel has
through neglect failed to discover such evidence.'" Kenley v. Armontrout, 937 F.2d
1298, 1304 (8th Cir. 1991) (quoting Laws v. Armontrout, 863 F.2d 1377, 1385 (8th
Cir. 1988)). "[S]trategy resulting from lack of diligence in preparation and
investigation is not protected by the presumption in favor of counsel." Id.

B. Holder's Claims

Holder's defense team obtained two mental-health experts, Dr. Steven Rothke,
a clinical neuropsychologist, and Dr. Thomas Reidy, a forensic psychologist. See
supra Part I.A.3. Dr. Rothke examined Holder, reviewed the findings of the
government's expert, Dr. Richard Wetzel (also a neuropsychologist), and testified
regarding Holder's mental state at the time of the bank robbery. Dr. Rothke was aware
of the accident that severed one of Holder's legs when he was fifteen years old, as well
as the incident in which Holder was struck in the head with a brick and Holder's
troubled upbringing. Dr. Rothke opined that Holder's amputation and desire for
money to purchase a new prosthesis was a motivating factor for committing the

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robbery, but that Holder "did not display 'any psychiatric diagnosis, nor is he in need
of any psychological treatment relating to his injury.'" Order Denying § 2255 Relief,
2008 WL 2909648, at *42. Dr. Reidy was tasked primarily with assessing Holder's
future dangerousness as an inmate, but also reviewed the reports of Drs. Rothke and
Wetzel.11

Holder's ineffective-assistance claim is two-fold. First, Holder alleges that Dr.
Rothke "performed something less than a full neuropscyhological examination," that
Herndon sought a third psychological evaluation by Dr. Anthony Semone, but that the
third evaluation did not occur prior to sentencing even though the district court
authorized it.12 Dr. Semone reviewed Dr. Wetzel's report after Holder was sentenced
and opined that Holder's brain damage, see supra note 11, could affect his judgment
and ability to assess danger. Holder argues that he is entitled to an evidentiary hearing
to determine why Herndon forwent Dr. Semone's evaluation prior to sentencing and
whether that decision was professionally reasonable.

11
Among Dr. Wetzel's findings was that Holder had a detectable brain condition
as a result of a skull fracture caused by the brick incident. Dr. Wetzel opined that the
condition affected only the motor functions in Holder's left hand—not Holder's
judgment.
12
The parties dispute when and for what purpose the court authorized the third
psychological evaluation by Dr. Semone. Holder claims that his counsel contacted Dr.
Semone "to review Dr. Wetzel's findings[] and [to] determine the need for further
neuropsychological testing." The government, on the other hand, claims that Dr.
Semone could not possibly be viewed as a responsive expert based on the timeline of
events—the court granted Herndon's request for the evaluation on March 12, 1998,
but Dr. Wetzel did not evaluate Holder until March 21 and did not release his written
report until March 23. We need not resolve the purpose and timing issues surrounding
counsel's request to have Dr. Semone evaluate Holder, however, because even under
Holder's view of the facts, we would reach the same conclusion.

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 Second, Holder alleges that counsel was deficient for failing to have him
separately evaluated by a trauma expert, as distinguishable from a neuropsychologist.
Specifically, Holder claims that "[e]ven if [he] received 'a full and complete
neuropsychological exam' as between Drs. Rothke and Wetzel, that exam is distinct
from a trauma assessment, which is not limited to the physical or organic brain
damage that a neuropsychological exam detects." Holder argues that he was
prejudiced because a third expert opinion or a trauma assessment, or both, would have
cast reasonable doubt regarding his ability to appreciate the dangerousness of his
conduct, thus enabling him to avoid the death penalty.

1. Failure to Present Testimony of Dr. Semone

Regarding his claim involving Dr. Semone, Holder relies principally on two
cases: Wiggins v. Smith, 539 U.S. 510 (2003), and Sinisterra v. United States, 600
F.3d 900 (8th Cir. 2010). In Wiggins, a judge convicted the petitioner of first-degree
murder, robbery, and two counts of theft. 539 U.S. at 514–15. At the start of the
sentencing proceedings, the petitioner's counsel told the jury that they would hear
evidence that the petitioner "has had a difficult life" and that "[i]t has not been easy
for him[,]" but that "he's worked," "tried to be a productive citizen, and [has] reached
the age of 27 with no convictions for prior crimes of violence and no convictions,
period." Id. at 515 (internal quotation marks omitted). No such evidence was
presented, however, and counsel instead chose to focus the entirety of the defense
efforts in the penalty phase on disputing petitioner’s direct involvement in the
murder.13 See id. at 515. That decision was made despite the existence of
"psychological reports and expert testimony demonstrating [the petitioner's] limited
intellectual capacities and childlike emotional state on the one hand, and the absence

13
Petitioner's counsel in Wiggins had moved to bifurcate the sentencing
proceedings between (1) "prov[ing] that [petitioner] did not act as a principal in the
first degree" and (2) presenting mitigating evidence, if necessary. 539 U.S. at 515.
That motion was denied.

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aggressive patterns in his behavior, his capacity for empathy, and his desire to
function in the world on the other." Id. at 516. The Supreme Court held that
petitioner's counsel was deficient for "fail[ing] to investigate thoroughly" and "never
follow[ing] up . . . with details of [petitioner's] history," id. at 526, and that such
deficiency prejudiced petitioner, see id. at 534–38 (describing "[t]he mitigating
evidence counsel failed to discover and present" as "powerful").

In Sinisterra, the petitioner was sentenced to death after being convicted of four
charges, including knowingly traveling in interstate commerce with the intent that a
murder for hire be committed. 600 F.3d at 903–04. At the penalty phase, the only
mitigation evidence presented by petitioner's counsel was redacted videotaped
interviews with petitioner's family members, friends, former employer, and
corrections and probations officers. Id. at 904. Notably, "[n]o evidence of
[petitioner's] mental health or capacity was presented." Id. Petitioner sought an
evidentiary hearing as to whether his attorneys were ineffective for failing to
investigate his background further, which he alleged included, inter alia, being the
victim of rape, physical and sexual abuse, and head injuries. Id. at 907. This Court
determined that petitioner's failure-to-investigate claim warranted further review and
remanded the case for an evidentiary hearing. Id. at 912.

Both Wiggins and Sinisterra are distinguishable from this case, however, and
thus Holder's reliance on them is misplaced. Each of those cases involved counsel's
complete, or near-complete, failure to investigate and present mitigation evidence
relating to the petitioners' backgrounds and mental capacities. See Wiggins, 539 U.S.
at 523–525, 537 (concluding that counsel's investigation into petitioner's social
background was limited to a single page contained in the presentence report and city-
kept records of petitioner's foster-care placements, and determining that "[petitioner's]
sentencing jury heard only one significant mitigating factor—that [petitioner] had no
prior convictions"); Sinisterra, 600 F.3d at 908 (stating that "[n]o evidence of
[petitioner's] mental health or capacity was presented during the penalty phase of his

-25-
trial[,]" and noting that petitioner's trial counsel "fore[went] any penalty-phase
presentation of his mental health and capacity" (emphases added)). Here, by contrast,
Holder's counsel investigated and presented a substantial amount of evidence relating
to Holder's background and mental capacity. See Order Denying § 2255 Relief,
2008 WL 2909648, at *9 (noting the "broad scope of mitigation evidence presented
to the jury for their consideration"). At Holder's sentencing, his counsel presented
testimony from, among others, the following individuals: Holder's family, including
his father, mother, brother, sister, maternal grandmother, aunt, and several cousins;
two of Holder's high-school teachers; law-enforcement officers that had previously
interacted with Holder; long-time friends of Holder; and a prosthetist–orthotist that
had previously examined Holder. See id. at *9–20. This nonexpert testimony was in
addition to the expert testimony and written reports submitted by Drs. Rothke and
Reidy. Accordingly, unlike in Wiggins and Sinisterra, where certain aspects of the
petitioners' social and medical histories were not fully investigated or altogether
ignored, the sum of the mitigating evidence and testimony in this case shed light on
Holder's troubled background, need for money, personal characteristics, and mental
capabilities. In short, Holder's counsel left no stone unturned. See id. at *21 ("The
penalty phase evidence was masterfully presented."). Wiggins and Sinisterra are thus
not factually analogous and are of little applicability.

Instead, we find Cole v. Roper, 623 F.3d 1183 (8th Cir. 2010), to be instructive.
In Cole, the habeas petitioner "had undergone two pretrial psychiatric evaluations by
mental health experts," but "agrue[d] that counsel [was ineffective for not] hav[ing]
had him evaluated by a third expert to develop mitigation evidence for the penalty
phase." Id. at 1189–90. This Court rejected that argument and determined that two
expert opinions "[were] enough of an investigation to clear Strickland's performance
prong." Id. at 1190. The same is true in this case. Here, like in Cole, two defense
experts already concluded that Holder did not suffer from any psychiatric disorders
or cognitive deficiencies. Compare id. ("[B]oth pretrial experts who examined
[petitioner] concluded that he was not suffering from any mental disease or defect at

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the time of the crime. . . . His thought processes were found to be logical and
sequential, and he was determined to be capable of knowing and appreciating the
nature, quality and wrongfulness of his conduct."), with Order Denying § 2255 Relief,
2008 WL 2909648, at *13 ("Dr. Reidy . . . . reviewed the report of Dr. Rothke,
neuropsychologist and 'secondary loss expert,' and the report of Dr. Wetzel, the
Government's neuropsychologist. He concluded that there was nothing in their 'very
similar' reports to indicate that [Holder] might have a mental illness.'"); see also Order
Denying § 2255 Relief, 2008 WL 2909648, at *42 ("Dr. Rothke concluded that
[Holder] did not display 'any psychiatric diagnosis, nor is he in need of any
psychological treatment relating to his injury.' . . . Dr. Rothke's report was
corroborated by the report of the Government's expert, Dr. Wetzel."). "Trial counsel
is not required by the Sixth Amendment to continue shopping for a[n] [expert] until
a favorable opinion is obtained." Forsyth v. Ault, 537 F.3d 887, 892 (8th Cir. 2008);
see also Marcrum, 509 F.3d at 511 ("Where counsel has obtained the assistance of a
qualified expert . . . and nothing has happened that should have alerted counsel to any
reason why the expert's advice was inadequate, counsel has no obligation to shop for
a better opinion.").

Accordingly, Herndon was not ineffective for failing to consult Dr. Semone
prior to sentencing.

2. Failure to Present a Trauma Expert

Holder's claim that counsel was deficient for not having him evaluated by a
trauma expert also fails. Holder claims that the reports of Drs. Rothke and Reidy "do
not reflect an awareness of the specific and vivid details [of his upbringing] that are
necessary for a reliable trauma assessment," and that "a trauma expert could have
swayed the jury with professional insights more relevant to [his] case, and beyond the
subjective 'brain damage' that is typically assessed by neuropsychologists." But
Holder has not shown, as he alleges, that either Dr. Rothke or Dr. Reidy lacked the

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"relevant skills, credentials, and professional experience" to conduct an adequate
evaluation of the events that shaped his life.

Dr. Rothke is board certified in "Rehabilitation Psychology" and is
characterized as a "secondary loss expert." Dr. Rothke conducted a three-hour
examination of Holder "for the purpose of evaluating [Holder] concerning the impact
of Mr. Holder's amputation injury in 1991 and to look at what if any relationship there
was between that injury and the crime for which Mr. Holder [was] charged and being
tried." Order Denying § 2255 Relief, 2008 WL 2909648, at *20 (internal quotation
marks omitted). Dr. Rothke concluded that "[Holder] displayed very little outward
signs of any type of emotional reaction to his injury." Id. (emphasis added) (citation
and internal quotation marks omitted).

Dr. Reidy is one of only about 175 board-certified forensic psychologists in the
United States. In forming his opinion regarding Holder's future dangerousness, Dr.
Reidy "reviewed F.B.I. and police reports, medical records, school records, jail
records, interviewed family members, friends, acquaintances, school personnel, and
correctional officers." Id. at *13. He also reviewed Dr. Rothke's report and had "no
complaint" and "no disagreement" as to its findings. Id. (internal quotation marks
omitted).

"In assessing the reasonableness of an attorney's investigation . . . a court must
consider not only the quantum of evidence already known to counsel, but also whether
the known evidence would lead a reasonable attorney to investigate further."
Wiggins, 539 U.S. at 527. Given Dr. Rothke and Dr. Reidy's credentials and the
breadth of their evaluations of Holder, nothing in the record supports Holder's
argument that a trauma expert would have reached different conclusions regarding
Holder's ability to appreciate the dangerousness of his conduct. Contrast with id.
at 525 (noting that "counsel uncovered no evidence in their investigation to suggest
that . . . further investigation would have been fruitless"). Accordingly, counsel was

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not deficient for not obtaining a separate trauma expert.

3. Prejudice

Holder was also not prejudiced by Herndon's failure to have Dr. Semone or a
trauma expert separately examine him prior to sentencing. As previously explained,
the essence of Holder's claim is that testimony from either a third psychologist or
trauma expert would have cast doubt on his ability to appreciate the dangerousness of
his conduct, thus negating the mens rea necessary for capital punishment. But a
reasonable jury considering at least, inter alia, Holder's preparations for the bank
robbery—e.g., wearing a bullet-proof vest, using semiautomatic rifles and bullets that
can penetrate police cars, and dousing the getaway van in gasoline—would still have
found that Holder was aware of a serious risk of death attending his actions, even
having heard additional expert testimony. This conclusion is made plain by the jury's
unanimous negative findings on both of the statutory mitigating factors that Holder
submitted—(1) that Holder did not fire the shots that resulted in Heflin's death and (2)
that Holder did not intend for any person to be killed. Given these findings, as well
as the testimony and circumstantial evidence that Holder fired shots inside the bank,
Holder cannot maintain that, had his counsel consulted with a third psychologist or
trauma expert, "the result of the proceeding would have been different." Strickland,
466 U.S. at 694.

Because Holder's counsel was not constitutionally deficient for not obtaining
the opinion of a third psychologist or trauma expert, nor did Holder suffer any
prejudice, the district court did not abuse its discretion in denying Holder an
evidentiary hearing regarding counsel's alleged failure to adequately investigate his
mental health.

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 IV. Constitutionally Defective Indictment

Holder's final argument on appeal is that the indictment against him failed to
allege a single 18 U.S.C. § 3592(c) statutory aggravating factor and the requisite
mental state required for imposition of the death penalty. The Fifth Amendment states
in relevant part that "No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury." U.S. Const.
amend. V. The Supreme Court has interpreted this to mean that "the indictment must
contain an allegation of every fact which is legally essential to the punishment to be
inflicted." United States v. Reese, 92 U.S. 214, 232 (1875). For capital cases, this
includes statutory aggravating factors. United States v. Allen, 406 F.3d 940, 943 (8th
Cir. 2005) (en banc) ("Allen II") ("[T]he Fifth Amendment requires at least one
statutory aggravating factor and the mens rea requirement to be found by the grand
jury and charged in the indictment."), vacating 357 F.3d 745 (8th Cir. 2004); see also
Ring, 536 U.S. at 589 ("Capital defendants . . . are entitled to a jury determination of
any fact on which the legislature conditions an increase in their maximum
punishment."); Jones v. United States, 526 U.S. 227, 243 n.6 (1999) ("[U]nder the
Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees
of the Sixth Amendment, any fact (other than prior conviction) that increases the
maximum penalty for a crime must be charged in an indictment, submitted to a jury,
and proven beyond a reasonable doubt.").

In Allen II, this Court determined that it is error to not charge the aggravating
factors for capital punishment in the indictment, 406 F.3d at 943, but that the error is
not structural and is thus subject to harmless-error analysis, id. at 945.14 A harmless

14
Holder argues, as did Allen, that Stirone v. United States, 361 U.S. 212
(1960), requires us to treat the defective indictment as structural error. For the same
reasons that we rejected this claim in Allen II, we also reject it now. See 406 F.3d
at 943–45. Holder is correct that after this Court decided Allen II, the Supreme Court
in United States v. Resendiz-Ponce, 549 U.S. 102 (2007), took up the precise question

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error is "[a]ny error, defect, irregularity, or variance that does not affect substantial
rights." Fed. R. Crim. P. 52(a). "[B]efore a federal constitutional error can be held
harmless, the court must be able to declare a belief that it was harmless beyond a
reasonable doubt." Allen II, 406 F.3d at 945 (alteration in original) (quoting Chapman
v. California, 386 U.S. 18, 24 (1967)) (internal quotation marks omitted). "When the
error at issue is the failure to have a jury make a necessary finding, . . . we review the
relevant evidence in the record to determine what 'any rational jury' would have done
if asked to make the necessary finding." Id. at 945 (citation omitted); see id. at 946
(employing the "narrowest method of conducting harmless-error review").

Here, just as in Allen's appeal, "[o]ur inquiry . . . is whether any rational grand
jury—and we presume that [Holder's] grand jury was rational—would have found the
existence of the requisite mental state and one or more of the statutory aggravating
factors found by the petit jury if the grand jury had been asked to do so." Id. at 945.
For at least the reason that the same grand jury that returned Allen's indictment also
returned Holder's indictment based on the same evidence and for the same charges,
"we see no realistic possibility that [Holder's] grand jury would have declined to
charge a statutory aggravating factor or the mens rea requirement in order to avoid
exposing [Holder] to the death penalty." Allen II, 406 F.3d at 949; see id. at 947
("Th[e] grand jury testimony persuades us beyond a reasonable doubt that, if the grand
jury had been asked to charge the grave-risk-of-death-to-others statutory aggravating
factor, it would have done so.").

of whether the omission of an element of a criminal offense in a federal indictment
constitutes harmless error. The Resendiz-Ponce Court did not reach that question,
however, because it found no error in the indictment. Id. at 111. In dissent, one
Justice stated that he would have found such an error to be structural, but recognized
that "the full Court will undoubtedly have to speak to the point on another day." Id.
at 116–17 (Scalia, J., dissenting). That day has yet to come, and until it does, this
panel is bound by its en banc decision in Allen II.

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 Accordingly, we reject Holder's Fifth Amendment Indictment Clause claim.

V. Conclusion

For the reasons set forth above, we affirm the district court's denial of Holder's
Rule 59(e) motion in all respects.
______________________________

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