Kelvin Malone v. Daniel Vasquez

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 96-1613
___________
Kelvin Malone, *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Daniel Vasquez, Warden, San *
Quentin State Prison; Jeremiah W. *
(Jay) Nixon, Missouri Attorney *
General, *
*
Defendants-Appellees.
___________

Submitted: May 19, 1997
Filed: February 26, 1998
___________

Before MURPHY and HEANEY, Circuit Judges and ROSENBAUM,1 District Judge.
___________

MURPHY, Circuit Judge.

Kelvin Malone, who was convicted of murder in Missouri and sentenced
to death, appeals from the denial by the district court2 of his petition
for a writ of habeas corpus under 28 U.S.C. §2254. We affirm.

1
The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota, sitting by designation.
2
The Honorable Jean C. Hamilton, Chief United States District Judge for the
Eastern District of Missouri.
 I.

Kelvin Malone was convicted of the 1981 murder of William Parr, a 62
year old taxi driver in Berkeley, Missouri, a St. Louis suburb. Richard
Elder, a fellow Yellow Cab driver, testified at Malone’s trial that around
11:45 p.m. on March 17, 1981, he was waiting in the cab line at the
Greyhound Bus Terminal in St. Louis. Parr was first in line, and Elder
heard the dispatcher tell Parr to pick up a package at First National Bank
for delivery. The bank was less than three blocks from the bus terminal,
and such deliveries were top priority. Parr left for the bank immediately.
Elder passed the bank about four minutes after Parr left on the delivery run
and saw Parr's cab parked in front of the bank with the dome light on.

About a block from the bank at the corner of Sixth and Locust, Elder
saw a black man with a suitcase trying to hail a cab. Elder later
identified this man as Kelvin Malone. On his way home that night, Elder
heard the dispatcher repeatedly calling Parr with no answer. Daniel Ward,
a First National Bank employee, testified that he left the bank at 1:00 a.m.
and saw a cab parked out front with a black man sitting in the back seat.

Police later found an abandoned cab at 6105 Avila in Berkeley. A
local resident reported seeing a Yellow Cab turn onto Avila at around 1:20
a.m. on March 18. Later that morning police found Parr's body in Entrance
Park in Berkeley. Parr had been shot and was lying face down with blood
coming from his nose and right ear. He was taken to Christian Northeast
Hospital where he was pronounced dead on arrival.

There was evidence that Kelvin Malone had arrived in St. Louis from
California on the evening of March 17 with a suitcase and two .25 caliber
pistols. Around 1:30 a.m. on March 18, Emmanuel Bego, who lived with
Michael Crenshaw in Berkeley, heard a knock at the door. Bego heard
Crenshaw say "Kelvin" when he went to the door, but Bego did not see who was
there. Later that day Crenshaw left for California

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with Malone in Crenshaw’s car. After they departed, Bego found a Greyhound
bus ticket in the basement for a trip leaving Los Angeles on March 15, with
scheduled arrival in St. Louis at 12:40 a.m on March 18.

California police found Malone and Crenshaw asleep in Crenshaw's car
in San Jose on March 24 and asked for identification. The men drove off
instead and were apprehended after a high speed chase. The officers found
a small suitcase and two loaded .25 caliber pistols in the car. Three
bullets test fired from one of these guns were later compared to a .25
caliber slug taken from Parr's brain. Initial comparisons with the naked
eye by St. Louis police were inconclusive, but an FBI ballistics examiner
using a comparison microscope determined that all four bullets came from one
of the guns which Malone had carried when he arrived in St. Louis and which
were found in the car at his arrest.

Missouri charged Malone with the murder of William Parr. By the time
of the trial on this charge in 1984, Malone had been convicted and sentenced
to death in California for two murders that took place in that state just
a few days after Parr was killed in Missouri.3 Counsel was appointed in the
Parr case on November 28, 1983, and Malone directed him to move to trial as
quickly as possible; counsel began to meet with Malone about a month before
trial commenced on March 26, 1984, and began detailed trial preparation two
weeks before trial. In preparation for trial, counsel reviewed with Malone
police reports, his earlier psychological examination, and other types of
information. Malone presented no evidence during the guilt phase of his
trial, and the only evidence he presented during the penalty phase was
expert testimony by

3
Malone was convicted of the murders of Myrtle Benham and Minnie White. In
the guilt phase of the Benham trial there was also evidence that Malone had kidnaped
Leroy Combs at gunpoint in Santa Maria, California on March 11, 1981 and that he and
Crenshaw murdered Jim Rankin (who disappeared from a Kansas City parking lot on
March 18, 1981).

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Professor James Gilsinan that the death penalty is not an effective
deterrent. He also offered the testimony of Father Francis Cleary related
to historical justifications for the death penalty, but it was not received.
Malone directed his attorney not to contact members of his family about
mitigating evidence because he wanted to avoid causing them additional pain.
Malone was convicted on March 30, and on the next day the jury returned a
verdict of death. He chose not to appear at sentencing on April 26, 1984,
when he was sentenced to death. He was then returned to California where
he remains incarcerated.4

Malone’s direct appeal of his Missouri conviction was unsuccessful.
State v. Malone, 694 S.W.2d 723 (Mo. 1985) (en banc). He then sought state
postconviction relief under Missouri Criminal Procedure Rule 27.26. Malone
v. State, 747 S.W.2d 695 (Mo.Ct. App. 1988). His original petition was
dismissed without prejudice because he was not in Missouri custody at the
time it was filed and Rule 27.26 had a custody requirement. He later
refiled his petition under Rule 29.15 after it replaced the earlier rule.
The new rule did not require Missouri custody, and the trial court rejected
the petition on the merits. Malone appealed to the Missouri Supreme Court
which remanded for factual findings on whether Malone had complied with the
Rule 29.15 requirement that a petitioner verify that the filing contained
all his claims and that he understood they were otherwise waived. The trial
court was instructed to make findings on whether this verification
requirement had been met and on whether the prosecution had exercised
racially motivated peremptory challenges. The court found that Malone had
not verified his petition and therefore dismissed it for lack of
jurisdiction. The Missouri Supreme Court affirmed, Malone v. State, 798
S.W.2d 149 (Mo. 1990) (en banc), and later dismissed as moot Malone’s
petition to recall the mandate and reinstate his appeal.

4
Counsel stated at oral argument that he understood federal habeas proceedings
were pending on Malone’s California convictions.

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 Malone then filed this petition for a writ of habeas corpus. He cited
over sixty grounds for relief, some of which had been raised in state court
and many of which had not. The district court denied his petition after
determining that most of the claims were procedurally barred because Malone
had failed to verify his petition as required by Rule 29.15 and had also
failed to present many of the claims in state court. After a thorough
review of the record, the court also concluded that his claims failed on the
merits and later denied Malone’s motion to alter or amend the judgment.

II.

The state argues that not all of Malone’s claims are properly before
the court because of the content of his notice of appeal. The district
court order denying his petition and considering all his claims was issued
on December 4, 1995, but the notice of appeal focuses on a January 17, 1996
order denying his motion to alter or amend the judgment. The notice stated
that he was appealing, “...from the final order and judgment issued by the
Honorable Judge Jean C. Hamilton on January 17, 1996. This judgment and
order denied Mr. Malone’s habeas corpus claims of constitutional error....”
Malone’s notice of appeal indicates he intended to appeal both the denial
of his post-judgment motion and the district court’s rulings on his
constitutional claims. It is appropriate in these circumstances to construe
his notice of appeal as encompassing both orders. See Sweet v. Delo, 125
F.3d 1144, 1148 (8th Cir. 1997). Because of Malone’s apparent intent to
appeal both from the judgment denying his petition as well as the subsequent
order, we waive the strict requirements of Rule 3(c). See Fed. R. App. P.
2.

Malone wishes to raise many issues on appeal, including various claims
of ineffective assistance of counsel. He alleges trial counsel was
ineffective in the guilt phase of his trial for failure to call two
witnesses who would have testified that they could not identify the black
man they had seen in Parr’s cab, to call United States District Judge George
F. Gunn to testify that he was not harmed during an armed

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robbery by Malone, to introduce evidence of a polygraph suggesting that
Malone did not commit one of the California murders, to prepare adequately
for trial, to obtain a stipulation or testimony that two police officers
found initial ballistics comparisons inconclusive, and to object to evidence
of a towel used to wipe prints from Parr’s cab and to evidence that he gave
a false name when arrested, to an improper closing argument, to the
exclusion for cause of a potential juror based on his refusal to consider
the death penalty, and to several jury instructions. He argues that his
trial counsel was ineffective in the penalty phase for not presenting
mitigating evidence from his family and not obtaining a new psychiatric
examination or using the results of his California exam. Malone argues that
appellate counsel was ineffective by not raising on direct appeal every
issue raised in his postconviction litigation.

Malone also raises claims of prosecutorial misconduct. He claims the
prosecution should not have introduced evidence of his prior convictions or
misleading testimony by California prosecutor Gary Admire that Malone had
admitted in his California trial that he had been in the vicinity where Parr
was killed. He also says the prosecution improperly bolstered the
credibility of prosecution witnesses, argued facts not in evidence, and
mentioned that he had admitted being near the crime scene, that the jury
could act on the basis of personal feelings or the general need to prevent
crime, and that he bore the burden of proof.

Malone also presents claims that his right to due process was violated
by excuse of a venire member for cause based on his refusal to consider
application of the death penalty, by informing the jury of his prior
convictions, and by improper instructions on mitigating and aggravating
factors. In addition, Malone argues that the prosecutor exercised
peremptory challenges based on race in violation of his right to equal
protection.

A.

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 Malone has abandoned several of the claims made to the district court
by not presenting them in his appellate brief. Jasperson v. Purolater
Courier Corp., 765 F.2d 736, 740-41 (8th Cir. 1985). The abandoned claims
include claims that he was denied due process and equal protection by
Missouri’s delay in bringing him to trial, that he was improperly forced to
choose between a speedy trial and sufficient time for his appointed counsel
to prepare for trial, that the Rule 29.15 requirement that pro se petitioners
verify their postconviction relief petitions violated his rights under the
fifth, sixth, and fourteenth amendments, and a claim that the prosecution
withheld potentially exculpatory information. Malone has also abandoned
several claims of ineffective assistance of trial counsel,5 claims regarding
jury selection,6 two claims of prosecutorial misconduct based on delay of
trial and introducing hypnotically refreshed testimony, and a claim that
permitting Gary Admire to repeat Malone’s testimony from his California
trials violated his right against self incrimination. Other abandoned claims
include ineffective assistance by state postconviction counsel, a violation
of his right to confront and cross-examine witnesses through the lack of
preparation by trial counsel, failure to instruct the jurors on their ability
to consider in mitigation all factors of Malone’s character, and improper
instructions about the burden of proof and the weighing of aggravating
factors. The law favors an adversarial presentation of issues in order to
conserve judicial resources and to ensure that cases are resolved in the
context of an actual dispute. Flast v. Cohen, 392 U.S. 83, 96-97 (1968).
The issues

5
These ineffective assistance claims include failure to object to introduction of
a Greyhound bus schedule and to an improperly empaneled jury, failure to preserve
issues for appeal, and moving to strike venire member Berits for cause. (The latter
claim is puzzling since the record shows that defense counsel objected to Berits being
removed for cause because of her claim that her employer would not release her from
work.)
6
The abandoned claims regarding jury selection are allegations that the venire
panel was not a fair cross section of the community, jurors were improperly excused
without cause, a separate jury was not selected for the penalty phase of trial, and the
venire panel was not sworn before voir dire.

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not presented in Malone’s brief should therefore be treated as abandoned and
they need not be discussed.7 Jasperson, 765 F.2d at 740-41.

B.

Missouri argues that Malone’s constitutional claims may not be reached
on the merits because they were not properly presented for review in state
court. Several of Malone’s claims were never brought in the Missouri courts
at all, while others were contained in petitions that did not comply with
Missouri Criminal Procedure Rule 29.15 requiring verification. Malone
responds that his claims were properly presented, or alternatively, that any
deficiencies in presentation may be excused.

Claims that have not been presented for state court review are
defaulted. Sweet, 125 F.3d at 1149; Nave v. Delo, 62 F.3d 1024, 1030 (8th
Cir. 1995). Malone never sought state court review of thirteen claims of
ineffective assistance of trial counsel,8 seven claims of prosecutorial
misconduct,9 a claim that the trial court was inconsistent

7
We have reviewed these claims nonetheless, and they would fail in any event
because of other procedural bars or on the merits.
8
These claims are that counsel was ineffective by failing to prepare adequately
for trial; to investigate state witnesses; to prepare for the cross examination of Gary
Admire, to present the results of Malone’s polygraph test; to call Judge Gunn; to object
to evidence of the false name he gave at arrest, a towel used to wipe prints from Parr’s
cab, and his prior crimes; to object to the composition of the jury panel or the exclusion
of a potential juror based on his opposition to the death penalty or improper closing
argument; to use the California psychological report; and to assess independently his
mental health.
9
These claims are that the prosecutor engaged in misconduct by introducing
misleading evidence and evidence of Malone’s prior crimes and by an improper closing
argument (arguing that Malone had the burden of proof, that the jury could act on
personal feeling or general desire to enforce the law, arguing facts not in evidence, and
bolstering the credibility of state witnesses).

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in overseeing the striking of jurors for opposition to the death penalty, a
claim that his right to confront and cross-examine witnesses was violated by
trial counsel’s lack of preparation, four claims of improper jury
instruction,10 and a claim that his death sentence resulted from the use of
unconstitutional aggravating circumstances.

The state also contends Malone failed to comply with Missouri Supreme
Court Rule 29.15, which requires a petitioner to verify that the petition
contains all of his claims and to acknowledge that any not included are
waived. The purpose of the rule is to ensure that all claims can be
considered in one proceeding so verification is not just a meaningless procedural device. Kilgore v.
State, 791 S.W.2d 393, 395 (Mo. 1990) (en banc). The state trial court made a factual
finding that Malone had not verified his petition, and the Missouri Supreme
Court relied on that finding when it dismissed the petition for lack of
jurisdiction. Malone, 798 S.W.2d at 151.

Malone's counsel conceded at oral argument that under "the letter of the law" the claims raised in his state
postconviction petition were procedurally barred, but he argues that they should be considered nonetheless. These
claims include ineffective assistance of trial counsel,11 a claim that the prosecution violated his right to equal
protection by exercising peremptory jury strikes on the basis of race, that the court

10
Malone claims that the jury was improperly instructed that it must unanimously
find particular mitigating factors and not instructed on the limits Missouri imposes on
weighing aggravating and mitigating factors and that all elements of the crime and any
aggravating factors must be found beyond a reasonable doubt. Malone also alleges his
trial counsel was ineffective in failing to object to these errors at trial.
11
Malone claims counsel erred in his failure to subpoena witnesses who saw a
black man in Parr’s cab, depose Richard Elder, obtain expert testimony on hypnotically
refreshed testimony, contact Crenshaw to testify, obtain stipulations or testimony that
initial ballistics tests were inconclusive, call his family to testify in mitigation, and use
his existing psychological report or obtain a new one.

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made erroneous evidentiary rulings,12 that Missouri improperly delayed his trial, and that the venire panel was not
sworn prior to voir dire.

In order for a state procedural rule to prevent federal review of
Malone’s constitutional claims it must have been firmly established,
regularly followed, and readily ascertainable when it was applied to him.
Ford v. Georgia, 498 U.S. 411, 423 (1991). This court has previously held
that the verification requirement of Rule 29.15 is an independent and
adequate state procedural bar. See Oxford v. Delo, 59 F.3d 741, 745 (8th
Cir. 1995). It is an independent state basis for decision because it is
neither intertwined with, nor dependent upon, federal law, Ake v. Oklahoma,
470 U.S. 68, 75 (1985), and an adequate basis because it meets the Ford test.
At the time Malone’s petition was dismissed for failure to comply with Rule
29.15, the Missouri verification rule was firmly established and consistently
enforced under the rule and its predecessor. Malone, 798 S.W.2d at 151; see
also Mills v. State, 769 S.W.2d 469, 470 (Mo.Ct. App. 1989); Riley v. State,
588 S.W.2d 738, 741 (Mo.Ct. App. 1979); State v. Rector, 547 S.W.2d 525, 526
(Mo.Ct. App. 1977). The rule was readily ascertainable as well. Rule
29.15(d) clearly stated that a "movant shall declare" that all his claims are
included and that those not included are waived. Mo. R. Crim. P. 29.15(d).
It also referred petitioners to Criminal Procedural Form No. 40, a sample
form for a Rule 29.15 petition which included a verification statement with
a blank for the petitioner’s signature.

The claims included in Malone’s unverified state petition may not now be considered on the merits because
the bar in Rule 29.15 is an independent, adequate

12
Malone claims that Elder’s identification and hypnotically refreshed testimony
of another witness should not have been admitted and that he was prevented from
soliciting the testimony of Emmanuel Bego about Crenshaw’s whereabouts to show
that the latter was not available to testify. He claims that evidence of his California
death sentence should not have been admitted during the penalty phase and that the
testimony of Father Cleary was improperly excluded.

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state ground for decision. Oxford, 59 F.3d at 745. This panel is bound by that holding unless the court en banc
were to reconsider the issue. Campbell v. Purkett, 957 F.2d 535, 536 (8th Cir. 1992). The dissent argues that the
rule was not clearly established and regularly followed at the time it was applied to Malone, but that argument is not
persuasive. Both at the time Malone’s unverified petition was filed and at the
time it was considered by the state courts Missouri had consistently treated
the failure to verify as a jurisdictional defect that prevented consideration
of a petition. See State v. Vinson, 800 S.W.2d 444, 447 (Mo. 1990) (en
banc); Malone v. State, 798 S.W.2d at 151; Reynolds v. State, 783 S.W.2d 500
(Mo.Ct. App. 1990); Sheperd v. State, 637 S.W.2d 801, 803 (Mo.Ct. App. 1982);
State v. Rector, 547 S.W.2d 525, 526 (Mo.Ct. App. 1977). All but one of the
cases the dissent cites in support of its argument that the rule was
unsettled were decided after Malone failed to comply with the verification
requirement and after the rule had been applied to him.

The lone case the dissent relies upon that had been decided at the time
Malone’s petition was considered by the state courts does not help him. See
Rodden v. State, 795 S.W.2d 393 (Mo. 1990) (en banc). The merits of an
unverified petition were considered in Rodden, but in that case involving
Rule 27.26 the state had not objected to the lack of verification until an
appeal was filed. Since Rule 27.26 placed no time limit on amendments, an
unverified petition could be amended to include verification in the absence
of an objection. Id at 395. The Rodden court held that such an objection
had to be made before the petition reached an appellate court. Because of
the state’s failure to make a timely objection in Rodden, the merits had to
be reached. The court expressly distinguished the new Rule 29.15, which
placed a time limit on amendments strict limitation on the time to amend a
petition in order to comply with the verification requirement and made
verification a jurisdictional prerequisite that could be raised at any time.
Id. Failure to verify within the time allowed under Rule 29.15 is treated
as a jurisdictional defect barring consideration of the petition no matter
when the objection is made. Id, citing Kilgore, 791 S.W.2d 393 and Reynolds,
783 S.W.2d 916. Malone failed to comply with this jurisdictional
prerequisite by not filing

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a verified Rule 29.15 motion even though verification was a well settled and
consistently applied rule at the time. There is therefore no inconsistency
between his case and Rodden because they were decided under different rules
with different limitations on verification.

The dissent argues that Malone’s failure to verify his petition does
not amount to procedural default because the fault was that of his
postconviction counsel and subsequent Missouri cases required a remand in
such circumstances to explore fault, but these cases were not decided until
after Malone’s petition was rejected. There is no entitlement to
postconviction counsel, Coleman v. Thompson, 501 U.S. 722, 755 (1991), and
any failure of Malone’s counsel to satisfy the requirements of Rule 29.15 is
not a basis to excuse the procedural bar. Id.; Nave; 62 F.3d at 1034. In
any event, Malone was not prejudiced by the failure to comply with the
verification requirement because the state court did consider and reject on
the merits all the claims he raised.
Almost all of the claims Malone attempts to assert in his habeas
petition have been procedurally defaulted. This includes both those never
presented to the state courts, Sweet, 125 F.3d at 1149; Nave, 62 F.3d at
1030; and those which were raised in his unverified postconviction petition.
We are bound by the state court’s factual finding that Malone failed to
comply with the verification requirement of Rule 29.15, 28 U.S.C. §
2254(e)(1), and by our precedent in Oxford that the Missouri verification
requirement is a firmly established rule of state procedure that bars
consideration of a petition for habeas corpus unless there has been
compliance. 59 F.3d at 745.

C.

Unless Malone can demonstrate cause and prejudice to excuse his
default, Murray v. Carrier, 477 U.S. 478, 488 (1986), or a fundamental
miscarriage of justice, Schlup v. Delo, 513 U.S. 298, 316 (1995), federal
habeas review is unavailable because the final state court to review his
claims clearly and expressly relied on an independent, adequate procedural
rule to dismiss them. Harris v. Reed, 489 U.S. 255,

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261 (1989); Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Malone asserts he
can show cause to overcome the default in three ways. He claims he was
unable to comply with Missouri procedure because he was mentally ill,
incarcerated in California, and received ineffective assistance from his
trial and postconviction counsel.

Establishing cause requires a showing of some external impediment that
frustrates a petitioner’s ability to comply with the state procedural rule.
Murray, 477 U.S. at 488. The record in this case includes no evidence that
mental illness hindered Malone’s ability to consult with counsel, file
pleadings, or otherwise comply with Missouri requirements for postconviction
relief so mental illness is not cause to excuse his procedural default.
Garrett v. Groose, 99 F.3d 283, 285 (8th Cir. 1995) (conclusive showing of
incompetence is necessary). While being incarcerated in California may have
made filing his petition in Missouri slightly more cumbersome, Malone has not
shown it interfered with his ability to file. His California incarceration
did not amount to state interference with his access to the courts and is
therefore not cause. See e.g., Lamp v. State of Iowa, 122 F.3d 1100, 1105
(8th Cir. 1997) (no cause where petitioner’s access to court is not blocked);
Cf. Amadeo v. Zant, 486 U.S. 214, 220-221 (1988) (deliberately withholding
evidence of a plan to exclude black jurors constitutes cause). Any error by
Malone's postconviction counsel could not be cause because there is no
constitutional entitlement to post-conviction counsel. Coleman, 501 U.S.
at 755. Since the alleged errors by his trial counsel did not impede his
ability to comply with the verification requirement of Rule 29.15, they also
are not cause. Murray, 477 U.S. at 488; Lamp, 122 F.3d at 1105.

Even if Malone were to show cause to excuse his procedural default, he
has not shown actual prejudice. Any error by Malone's postconviction counsel
is irrelevant since there is no entitlement to counsel at that stage.
Coleman, 501 U.S. at 755. Malone asserts that the ineffectiveness of his
trial counsel prejudiced him by the failure to present mitigating evidence
or to raise all the issues included in his federal habeas petition. No duty
exists to raise every nonfrivolous issue that is available, however,

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Lamp, 122 F.3d 1106, and Malone was not prejudiced by counsel’s decision not
to raise every conceivable claim. Malone’s asserted mental illness and
California incarceration did not prejudice him because he has not shown that
they interfered with his ability to comply with Rule 29.15 or otherwise seek
postconviction relief. Lamp, 122 F.3d at 1105.

Malone also argues that his procedural default should be excused under
the fundamental miscarriage of justice exception. To invoke this exception,
Malone must demonstrate that new evidence unavailable at the time of trial
makes his actual innocence of the crime sufficiently likely to warrant
consideration of his procedurally barred claims. Schlup, 513 U.S. at 315.
Malone has not presented any such evidence. He merely asserts in his brief
that “[c]onstitutional errors, primarily attorney failure to investigate,
probably caused his death sentence.” This is insufficient to make out a
gateway claim of actual innocence under Schlup, let alone the more exacting
standard for a substantive claim of actual innocence. Id at 317.
Because Malone has not made a showing of cause and prejudice or actual
innocence, the claims presented in his unverified state post-conviction
motion are procedurally barred from further review.

III.

A.

Of the over sixty claims Malone presented in his initial habeas
petition and the almost thirty he has pursued on appeal, only his claim of
ineffective assistance by appellate counsel is not procedurally barred.
Missouri has waived the procedural bar that would otherwise apply to this
claim. Malone states that the failure of his appellate counsel to raise on
direct appeal all those issues included in his postconviction submissions was
below the objective standard of competence for counsel. The district

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court dismissed this claim because it was not presented with sufficient
argument or facts to support it.

We affirm the district court’s disposition of this claim. Claims
argued with no specificity are waived. Sweet, 125 F.3d at 1159. A claim of
ineffective assistance of counsel requires a showing that deficient
performance by counsel prejudiced the defendant by depriving him of a fair
trial with a reliable result. Strickland v. Washington, 466 U.S. 668, 686
(1984). Malone has cited no specific error by his appellate counsel, nor has
he demonstrated that the failure to raise every conceivable claim prejudiced
him. Even were we to credit Malone’s generalized claim, the failure of
appellate counsel to raise all conceivable arguments is not in itself error
and the claim would fail on the merits. See Lamp, 122 F.3d at 1106.

B.

The dissent concludes at least two of Malone’s claims are not
procedurally barred and should succeed on the merits. These are claims that
the prosecution violated Malone’s right to equal protection through racially
based peremptory challenges and that he received ineffective assistance of
counsel at the sentencing phase by failure to contact his family to testify
or to introduce an existing psychological report or obtain a new one. Even
if these claims could be considered on the merits, they would fail.

Although Malone made a prima facie Batson claim by establishing that
he is black and that the prosecutor engaged in a pattern of striking blacks
from the jury, Batson v. Kentucky, 476 U.S. 79, 96 (1986), he failed to rebut
the prosecutor's proffered racially neutral reasons for those strikes.
Purkett v. Elem, 115 S.Ct. 1769, 1771 (1995). The state trial court
considered and rejected this claim three times: on Malone's motion to quash
the jury at the conclusion of voir dire, on his motion for a new trial, and
on remand from the Missouri Supreme Court. On remand the court specifically
found that the prosecutor had race-neutral reasons for his peremptory

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strikes and that Malone had not shown those reasons to be pretextual. Review
of this claim is controlled by these factual findings which we must presume
to be correct. 28 U.S.C. § 2254(e)(1); Purkett, 115 S.Ct. at 1771-72. We
have also carefully considered the record of the proceeding and agree with
the state court’s conclusions.13

Malone also claims his counsel was ineffective in the sentencing phase
of his trial by failing to contact his family about testifying and by failing
to obtain a new psychological examination or to introduce an existing
psychological report. Malone specifically told his attorney not to contact
family members to avoid causing them more pain. Malone of course would have
been in the best position to know how his family reacted to his troubles with
the law, and Missouri rules of professional responsibility provide that
attorneys should, "defer to the client regarding such questions as...concern
for third parties...." Mo.R.P.C. 1.1. A professional guideline is a relevant
measure to evaluate counsel’s performance. Strickland, 466 U.S. at 688.
Additionally, during Malone's Missouri postconviction proceeding his trial
counsel testified that he had talked with Malone's father and sister prior
to the Parr trial and that he thought he had spoken with the mother as well.
He also had before him the record of the penalty phase of the California
trial which contained family testimony about Malone's upbringing and
background, including his violations of the law from an early age. The
decision not to call family members to testify in mitigation has been
recognized as a "strategic decision" that is "normally left to counsel's
judgment." Fretwell v. Norris, 1998 WL

13
The prosecutor said venire member Henderson was stricken because she had
been the victim of an armed robbery, and none of the white jurors noted by the dissent
had personally been the victim of a violent crime. Venire member Goode was stricken
because he seemed familiar to the prosecutor and was the son of a minister. Although
a white venire member who had spent seven years in the seminary was not stricken, he
did not have the additional characteristic of being familiar to the prosecutor. The
prosecutor said he struck venire member Simmons because he resided in Berkeley and
the prosecutor believed from his experience it was not a good idea to have jurors who
were familiar with the area of a crime.

-16-
3583, *6 (8th Cir. 1998) (internal citations omitted). As to the
psychological evidence, the record does not indicate that Malone behaved in
a manner suggesting the need for a new examination, and his existing report
contained potentially damaging evidence relating to his misconduct in San
Quentin and his extensive criminal history.

Counsel's decisions thus appear to fall within the range of reasonable
representation, Strickland, 466 U.S. at 686; see also Hayes v. Lockhart, 852
F.2d 339, 348 (8th Cir. 1988), but even if we presume his attorney's
performance was deficient, Malone has not shown prejudice. Counsel conceded
at oral argument that at least one of the four aggravating factors found by
the jury was valid, and this is sufficient to support a death sentence under
Missouri law. State v. Kenley, 693 S.W.2d 79, 82 (Mo. 1985) (en banc). The
facts of the Parr murder suggested a callous indifference to the life of
another, and the jury heard evidence that at age twenty Malone had been
involved in multiple murders over the course of several days. When testimony
by Malone's family was considered in a hearing on his Rule 29.15 motion, it
demonstrated that Malone was involved in criminal activity at a young age and
that he had consistently demonstrated anti-social behavior. His existing
psychological report showed that he had pressured other inmates to get their
food and had physically threatened guards in jail. Such evidence of a
troubled background and violent behavior is "by no means uniformly helpful."
Burger v. Kemp, 483 U.S. 776, 793 (1987). In light of the whole record any
mitigating evidence from family members about his upbringing and
psychological difficulties would not have made a different sentence
sufficiently likely to support an ineffective assistance of counsel claim.
Id at 694.

IV.

Kelvin Malone has brought many claims in this habeas petition, but
almost all of them were never properly presented to the state courts, and
Malone has not shown he can meet any exception to excuse the procedural bars
to consideration of these claims. His single unbarred claim has not been
stated with sufficient specificity to be

-17-
considered. After thorough consideration of the record, we affirm the
judgment of the district court.

HEANEY, Circuit Judge, dissenting.

I respectfully dissent. The all-white jury that convicted Kelvin Malone, a 20-year-old black male with a tenth
grade education, was empaneled in violation of Batson v. Kentucky, 476 U.S. 79, 89 (1986) (holding that equal
protection clause forbids prosecutor to challenge potential jurors solely on account of race). Moreover, Malone was
denied the effective assistance of counsel at the penalty phase of his trial. Each of these constitutional errors
constitutes an independent basis for the issuance of a writ of habeas corpus, and both issues were properly preserved
for review by this court. For these two reasons, I would remand this case to the district court with directions to issue
a writ of habeas corpus ordering the state court to vacate Malone’s sentence and conviction. My understanding of
the history of this dispute, as well as the controlling law, is somewhat different than that of the majority and is set
forth below.

I.

On March 31, 1984, an all-white jury in the Circuit Court of St. Louis County, Missouri found Kelvin
Malone guilty of the March 17, 1981 murder of William Parr, a white St. Louis cab driver. Malone, a black male,
was twenty years old on the date of the offense. He had a tenth-grade education. On April 1, 1984, the jury
recommended a sentence of death for the offense. After the Missouri court imposed sentence on April 26, 1984,
Malone was returned to California, where he remains on death row for a murder he committed in that state.

The trial court appointed William Aylward, St. Louis County Assistant Public Defender, to represent Malone
on November 28, 1983. He did not begin work on Malone’s case, however, until about two weeks before the trial
was scheduled to start.

-18-
Before trial, Aylward talked with Malone on several occasions and reviewed the police records, but he failed to
interview any of the witnesses identified in the police reports or by Malone. He did not offer any evidence at trial.
The state was represented at the two-day trial by two prosecutors.

At the penalty phase of the trial, the public defender presented no witnesses to humanize Malone or to
explain the circumstances of his life leading to his crimes. He called only one witness, an academic who testified that
there was no evidence to support the view that the death penalty is an effective deterrent. Malone unsuccessfully
appealed his conviction and sentence to the Missouri Supreme Court. State v. Malone, 694 S.W.2d 723 (Mo. 1985)
(en banc).

On July 3, 1986, Malone’s counsel filed an initial motion for post-conviction relief under Missouri Supreme
Court Rule 27.26 (repealed 1988). Following consultation with new appointed counsel, Malone filed an amended
Rule 27.26 motion on March 13, 1987. Twenty-two claims were raised in this motion, including claims that the
state used its peremptory challenges to strike all blacks from the jury and that Malone’s counsel was ineffective at
the penalty phase of the trial for failing to investigate or present mitigating evidence. On June 30, 1987, the state
filed a motion to dismiss Malone’s Rule 27.26 motion; because Malone was in custody in California rather than
Missouri, a Rule 27.26 motion did not lie. The district court dismissed the motion with the simple words “so
ordered.” The Missouri Court of Appeals affirmed, stating that dismissal did not prejudice Malone’s right to file
a motion under the newly adopted Rule 29.15 so long as he filed on or before June 30, 1988. Malone v. State, 747
S.W.2d 695, 701 (Mo. App. 1988).

On May 24, 1988, Malone’s counsel filed a Rule 29.15 motion for post-conviction relief asserting
essentially the same claims set forth in his amended Rule 27.26 motion. On July 21, 1988, Malone’s counsel filed
an amended Rule 29.15 motion incorporating by reference all claims raised in the May 24th motion and stating

-19-
additional facts in support of some of the claims. Following a January 12, 1989 evidentiary hearing, the motion
court denied each of Malone’s claims on the merits.

With respect to Malone’s claim under Batson, the motion court stated that Malone was not a member of a
racially-cognizable group as required by Batson because his mother was white and his father was black. The court
stated that neither Batson nor its progeny had recognized a person of mixed racial heritage as being a member of a
racially-cognizable group. As an additional basis of decision, the motion court held that blacks were not intentionally
excluded from the jury. In so doing, the court relied on the trial judge’s report to the Supreme Court of Missouri that
reached the same conclusion. According to the motion court, the findings by the judge who witnessed the entire jury-
selection procedure resolved the issue as to whether blacks were excluded from the jury panel in favor of the state
and these findings precluded further review of this issue through res judicata.14

Malone appealed to the Missouri Supreme Court. During the appeal, the state challenged for the first time
Malone’s original and amended Rule 29.15 motions as insufficient under Rule 29.15(d) because they were unverified.
See Malone v. State, 798 S.W.2d 149, 150 (Mo. 1990) (en banc). The Missouri Supreme Court, stating that it was
faced with an incomplete record with respect to the Batson claim and the verification issue with regard to ineffective
assistance of counsel, remanded the matter to “the trial court to conduct an evidentiary hearing and determine whether
[Malone] complied with the verification provisions of Rule 29.15 and whether [Malone’s] trial jury was impaneled
contrary to the teachings of Batson v. Kentucky, 476 U.S. 79 (1986) and State v. Antwine, 743 S.W.2d 51 (Mo.
banc 1987).” Id.

14
The motion court relied on the report of the trial judge to the Missouri Supreme
Court, item E5, to support this finding. For whatever reason, item E5 was not made a
part of the record submitted to our court, but we have subsequently obtained a copy of
that report and it is properly considered as a part of the record.

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 On January 19, 1990, the trial court conducted the evidentiary hearing. Prior to the court’s ruling,
defendant’s counsel filed a motion for leave to supply verification for the original and amended motions. The court
denied the request. On March 26, 1990, the trial court dismissed Malone’s Rule 29.15 motion, ruling on the merits
of his Batson challenge, and held that the failure to file a properly-verified motion on or before June 30, 1988 with
respect to the remaining issues deprived the court of jurisdiction to hear the matter. The trial court dismissed
Malone’s motion and the Missouri Supreme Court affirmed. Malone, 798 S.W.2d at 151.

Malone next filed a petition for habeas corpus with the federal district court. In his petition, Malone raised
some twenty-three claims including that his trial counsel rendered ineffective assistance at the penalty phase of his
trial and that, under Batson, the prosecution improperly struck black jury panel members in violation of his equal
protection rights. The district court considered and denied each claim in the motion both on the merits and because
Malone did not comply with the state verification requirements.

II.

In Ford v. Georgia, 498 U.S. 411 (1991), the Supreme Court held “that only a ‘firmly established and
regularly followed state practice’ may be interposed by a state to prevent subsequent review by this Court of a federal
constitutional claim.” Id. at 423-24 (quoting James v. Kentucky, 466 U.S. 341, 348 (1984)) (citation omitted).
Here, the verification rule was not firmly established or regularly followed at the time Malone filed his initial Rule
27.26 motion on July 3, 1986, when he filed his amended Rule 27.26 motion on March 18, 1987, when he filed his
initial Rule 29.15 motion on May 24, 1988, or when he filed his amended Rule 29.15 motion on July 21, 1988. A
brief history of the verification requirement in the Missouri state courts illustrates this fact.

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 On September 11, 1990, the Missouri Supreme Court considered the post-conviction motion of James
Rodden for relief from a murder conviction. Rodden v. State, 795 S.W.2d 393 (Mo. 1990) (en banc). In that case,
Rodden filed a pro se Rule 27.26 motion attacking his murder conviction. His motion was neither signed nor
verified. Rather, counsel signed it “James Rodden by Lee Nation.” The filing, according to Rodden’s testimony,
was accomplished without his knowledge or consent. On July 21, 1988, Rodden filed a first amended Rule 27.26
motion, which was again signed only by Rodden’s counsel. On August 31, 1989, a second amended Rule 27.26
motion was filed. It, too, was neither signed nor verified by Rodden. On the same day, the trial court ruled against
Rodden on the merits. The state argued that the Missouri Supreme Court lacked authority to review the decision
because of the absence of verification of the post-conviction motion. The Missouri Supreme Court agreed to hear
the case on the merits stating:

Even an essential element of a pleading, like verification, may be added by amendment. Drury
Displays, Inc. v. Board of Adjustment, 760 S.W.2d 112, 114-15 (Mo. banc 1988). In this case, the
state went to trial on the merits without any objection to deficiencies in the pleadings. The first
objection to the pleadings was before this Court on appeal. Any deficiencies in the pleadings were
waived, the pleadings are treated as amended to conform with the evidence, and the state may not
raise lack of verification of the Rule 27.26 pleading for the first time on appeal.

Id. at 395 (citations omitted). Here, as in Rodden, the lack of verification was raised for the first time on appeal, yet
the state court dealt inconsistently with the two cases.

Two months later in State v. Vinson, 800 S.W.2d 444 (Mo. 1990) (en banc), the Missouri Supreme Court
again considered jurisdiction over an unverified, amended, Rule 29.15 motion. The court, citing the instant case,
Malone, 798 S.W.2d at 150, dismissed the motion for want of jurisdiction. Chief Justice Blackmar dissented,
stating:

-22-
 I cannot agree that the Court lacked jurisdiction to consider the amended 29.15 motion. I would
hold, rather, that when the state provides counsel for a postconviction movant, and that counsel fails
to procure the movant’s verification on an amended motion which is otherwise timely, the Court
may allow the verification to be supplied at a later time.

Proceedings under Rule 29.15 are civil. It is uncommon in civil proceedings to hold that
the filing of defective papers deprives the Court of jurisdiction. The usual remedy is to permit
defects to be corrected by amendment. The law has been particularly intolerant of those who make
no mention of a pleading defect until the trial court has ruled and then seek to disadvantage their
opponents by claims of procedural defect. Rule 55.33(b). Nothing in the text of Rule 29.15
indicates that proceedings under that rule are to be treated in a way different from what is usual in
civil actions. Such phrases as “a nullity,” or “failed to invoke the circuit court’s jurisdiction” are
simply bootstrapping. The Court could perfectly well allow the verification to be supplied when
the defect is pointed out. This would allow the state to enjoy all of the real or imagined benefits of
verification.

....

Some of the opinions on this subject suggest that the verification requirement serves an
expediting purpose. I cannot see that it expedites the proceedings in any way. There rather will be
procedural hassles and a ping-pong match between state and federal courts, if this movant is
obliged to pursue other postconviction remedies.

Id. at 450-51 (Blackmar, C.J., dissenting).

Six months later, the Missouri Supreme Court decided Sanders v. State, 807 S.W.2d 493 (Mo. 1991) (en
banc), and Luleff v. State, 807 S.W.2d 495 (Mo. 1991) (en banc). In Sanders, the movant was convicted of murder
in the first degree and sentenced to death. His Rule 29.15 motion for post-conviction relief was denied without an
evidentiary hearing. Sanders filed a pro se motion for post-conviction relief

-23-
on April 25, 1988. The following day the court appointed the office of the public defender to represent him, and the
court granted the public defender’s motion for additional time within which to file an amended motion. On
November 29, 1988, counsel filed an addendum to the pro se motion that was neither signed nor verified by Sanders.
On January 19, 1989, counsel filed a completed pro se Rule 29.15 form that had been signed and verified by Sanders
back on May 5, 1988, soon after he filed the pro se motion. The trial court dismissed the amendment as not timely
filed. In reversing the district court, the Missouri Supreme Court stated:

Until today [April 9, 1991] this Court has not deviated from its firm position that failure
to timely file a motion constitutes a complete bar to consideration of a movant’s claims, even when
the claims are attributable entirely to inaction of counsel. . . .

In Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991), decided today, this Court altered
course. There the record reflected that movant’s appointed counsel took no action whatsoever on
movant’s behalf, thereby apparently failing to comply with the provisions of Rule 29.15(e). On the
face of the record it appeared that movant was deprived of meaningful review of his claims. The
question then became one of the appropriate forum in which to address the claims of abandonment
of counsel. This Court held the appropriate forum to be the motion court.

The considerations underlying this Court’s holding in Luleff are equally compelling in this
case where the record reflects that counsel has determined that there is a sound basis for amending
the pro se motion but fails timely to file the amended motion as required by Rule 29.15(f). The
failure is, in effect, another form of “abandonment” by postconviction counsel.

Id. at 494-95 (original emphasis and citations omitted). The court then laid down explicit guidelines for counsel
to follow in future cases.

-24-
 At such time as counsel may seek leave to file pleadings out of time, the motion shall set forth facts,
not conclusions, showing justification for untimeliness. Where insufficiently informed, the court
is directed to make independent inquiry as to the cause of the untimely filing. The burden shall be
on the movant to demonstrate that the untimeliness is not the result of negligence or intentional
conduct of the movant, but is due to counsel’s failure to comply with Rule 29.15(f). If the court
determines that the untimeliness resulted from negligence or intentional conduct of movant, the
court shall not permit the filing. Should the failure to file a timely amended motion result from
inattention of counsel, the court shall permit the filing.

Id. at 495 (original emphasis omitted).

The same year, the Missouri Supreme Court considered the first-degree murder conviction of Leamon White.
State v. White, 813 S.W.2d 862 (Mo. 1991) (en banc). White filed a timely but unverified post-conviction motion
on August 17, 1989. The motion court appointed counsel on September 25, 1989. The first counsel withdrew and
a new post-conviction counsel was appointed. New counsel failed to file a timely verified motion. White argued that
his second counsel effectively abandoned him by failing to file a timely verified motion. The supreme court stated:
“Counsel’s withdrawal, failure to file a timely amended motion, and failure to verify and allege sufficient facts raise
serious questions as to whether the movant received postconviction representation in the sense of Rule 29.15.” Id.
at 864 (original emphasis omitted). The court remanded to the motion court for further proceedings consistent with
Sanders.

In State v. Clay, 817 S.W.2d 565 (Mo. Ct. App. 1991). David Lee Clay’s counsel first raised certain issues
in an amended Rule 29.15 motion that was not timely filed nor verified. The court stated:

-25-
 If movant can establish that the failure to verify and timely file is caused by the inattention of
counsel, the amended motion can be filed and ruled on.

....

If the failure to verify was Clay’s fault, the amended motion is a nullity and the motion court has
no jurisdiction. If, however, the untimeliness was counsel’s fault, the motion court must treat the
29.15 motion as timely filed. And, if the failure to verify is counsel’s fault, the trial court must take
appropriate steps to have the amended motion verified so that it properly invokes the jurisdiction
of the motion court.

Id. at 569 (citations omitted).

In Hutchinson v. State, 821 S.W.2d 916 (Mo. Ct. App. 1992), the movant filed a pro se Rule 29.15 motion
on June 28, 1988, contending that his trial counsel was ineffective. On August 25, 1988, the court appointed
counsel, who filed an unverified Rule 29.15 motion on October 28, 1988. In that case:

An evidentiary hearing was held on January 26, 1990. The motion court stated at the
hearing that its review was limited to the claims alleged in the pro se motion. Limited testimony
was heard concerning the allegations in the amended motion. The court denied the pro se motion
and concluded that because the amended motion was unverified, the claims alleged in the amended
motion were “time barred and procedurally waived.” . . . .

For his sole point on appeal, movant contends that the trial court erred in not considering
the grounds raised in the unverified amended motion and in not inquiring into the cause of the
failure of the amended motion to be verified. The general rule is that an unverified motion is a
nullity which fails to invoke the jurisdiction of the trial court. However, the Missouri Supreme
Court modified the strict application of this rule in State v. White, 813 S.W.2d 862 (Mo. banc
1991). If a movant can

-26-
establish that the failure to verify is caused by the inattention of counsel, the amended motion can be filed and ruled
on.

. . . [W]e must remand to the motion court for a determination of the cause of the lack of
verification. The motion court must make a factual inquiry into the cause of the violations by
holding an evidentiary hearing or, if the facts are undisputed, by examining the record. The court
must make findings of fact on the question of whether the failure to verify results from the
negligence or intentional conduct of movant or from the inattention of counsel. If the failure to
verify was movant’s fault, the amended motion is a nullity and the motion court has no jurisdiction.
If, however, the untimeliness was counsel’s fault, the motion court must take appropriate steps to
have the amended motion verified so that it properly invokes the jurisdiction of the motion court.
If, as a result of the motion court’s findings, the amended motion is filed and verified, the motion
court should then proceed to review the allegations of the motion.

Id. at 917-18 (citations omitted).

A careful review of the above-cited cases leads to the conclusion that the state’s verification rule was neither
firmly established nor regularly followed when the Supreme Court of Missouri affirmed the trial court’s dismissal
of Malone’s Rule 29.15 motion for lack of verification. Although the Missouri Supreme Court regularly used the
language of jurisdiction, its decisions belie that posture. Moreover, as noted in Chief Justice Blackmar’s dissent in
Malone, the majority of the state court ignored Rodden, which had been decided less than one month before. The
verification rule was not firmly established when Malone filed his Rule 27.26 motions nor when he filed his initial
or amended Rule 29.15 motions on July 3, 1986 and July 21, 1988, respectively.

In any event, failure to file a timely-verified motion was the fault of his appointed counsel, not Malone,
which brings Malone within the purview of Vinson, Sanders, Luleff, White, Clay, Hutchinson. Malone was a
prisoner in California when counsel was appointed to represent him in the post-conviction proceeding. Counsel
should

-27-
have been aware of the verification requirements under the rules, yet failed to take timely action to have that
requirement fulfilled. With respect to the Rule 29.15 motion, Malone’s counsel explained the procedural reasons
why Malone had to file a new motion, but did not remember whether she informed him that the new form had to be
verified. Malone expected that his counsel would file a proper Rule 29.15 motion on his behalf. Between the time
of the filing of the original Rule 29.15 motion and prior to the filing of Malone’s amended motion, an attorney
reviewed the file and noticed that the initial Rule 29.15 motion had not been verified. He immediately sent a new
form to Malone in California. During the week of September 12, 1988, Malone’s lawyer found a verified, signed
copy of the Rule 29.15 motion, notarized on the 12th day of July, 1988 and postmarked July 25, 1988.

Counsel’s failures to verify are not to be treated under the rubric of ineffective assistance of post-conviction
counsel, but rather as an abandonment of counsel. The fact that the Missouri Supreme Court in 1991 set forth
guidelines for counsel to follow in future cases does not support the state’s view that the verification rule was firmly
established and regularly followed at the time that Malone’s motions were filed. In the cited cases the Missouri
Supreme Court remanded to the motion court to determine whether the fault for lack of verification lay with the
movant or with the movant’s counsel. Here, the record is clear that the fault lay with counsel, not Malone. Thus,
in my view, lack of verification does not constitute procedural default under state law in this case.

III.

Defense counsel moved to quash the jury panel at the conclusion of voir dire and for a mistrial post-verdict
because the defendant’s equal protection rights were violated by the prosecuting attorney’s intentional exclusion of
all four black members of the jury

-28-
panel. Although the prosecutor offered no race-neutral explanation for the strikes at the time of trial,15 the court
nonetheless denied the motions.16

Malone raised the Batson issue at trial, in his first amended motion to vacate his sentence under Supreme
Court Rule 27.26 dated March 13, 1987, in his Rule 29.15 motion dated May 24, 1988, and in his first amended
Rule 29.15 motion filed on July 20, 1988. The Missouri Supreme Court, on appeal of the trial court’s denial of

15
In response to Malone’s post-verdict motion to quash the jury and for a new
trial, the state responded that Mr. Malone was not black. The state expressed the view
that Malone could not challenge the exclusion of black jurors because he was of mixed
race, being the child of a white mother and a black father.
16
A direct appeal in the instant case was still pending, however, at the time
Batson was decided. Thus, the Batson test is the appropriate one to apply in this case.
At the time of trial, however, the prosecutor’s use of peremptory challenges was
covered by Swain v. Alabama, 380 U.S. 202 (1965). In Garrett v. Morris, 815 F.2d
509 (8th Cir. 1987), we held that the decision in Swain does not completely insulate
a prosecutor’s use of peremptory challenges in a given case where the prosecutor
volunteers the reasons for his actions and makes them part of the record.

The record is then no longer limited solely to proof that the prosecutor has
used his peremptory challenges to strike all black jurors from the
defendant’s jury panel, and the presumption that the prosecutor has acted
properly falls away. At that point, the court has a duty to satisfy itself that
the prosecutor’s challenges were based on constitutionally permissible
trial-related considerations, and that the proffered reasons are genuine
ones, and not merely a pretext for discrimination.

Id. at 511.

Here, the state’s response that Malone was not black is not only disputed at
every phase of the record, but this statement, as noted in Garrett, required the court to
satisfy itself that the challenges were based on constitutionally-permissible, trial-related
considerations.

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Malone’s Rule 29.15 motion, explicitly remanded the case to the trial court to conduct an evidentiary hearing and
determine whether Malone’s trial jury was impaneled contrary to the teaching of Batson and Antwine. Malone, 798
S.W.2d at 150.

On remand, the trial court conducted an evidentiary hearing and determined that Malone established a prima
facie case under Batson. The trial court found that Malone was black and therefore a member of a cognizable racial
group. The court also found that the state utilized three of its nine peremptory strikes to remove blacks from the
jury panel and one of its two strikes in the alternate pool to strike a potential black alternate, leaving Malone to be
tried by an all-white jury. The court directed the prosecutor to explain his reasons for striking the four black
members of the venire: Henderson, Grooms, Simmons, and Goode. For the first time the prosecutor outlined his
reasons for making the disputed strikes. He stated he struck Henderson because she was the victim of an armed
robbery a few years before in which no person was ever charged with the offense. He stated that he struck Grooms
because he stated his objection to the death penalty and because he indicated he would attempt to convince others
of his view. The prosecutor defended his strike of Simmons because Simmons resided in Berkeley. Finally, he stated
that he struck Goode because he looked familiar and because he was the son of a minister or pastor of a church. The
court found that the prosecutor provided credible, rational, neutral explanations for each of the questioned
peremptory strikes and that the state’s actions were properly based on verbal and nonverbal communications from
jurors and on the prosecutor’s previous experiences. Finally, the court found that Malone had failed to show that
the stated explanations were pretextual. The Missouri Supreme Court affirmed over Chief Justice Blackmar’s
dissent.

After the Missouri Supreme Court denied relief, Malone raised his Batson claim as part of his petition for
habeas relief in federal district court. The court denied relief, holding that Malone had defaulted the claim in light
of the state court’s dismissal of his Rule 29.15 motion. In the alternative, the district court denied Malone’s Batson
claims

-30-
on the merits. It concluded that the prosecutor’s reasons for striking each of the black prospective jurors were
racially neutral on their face. The court rejected Malone’s argument that the state’s proffered reasons for striking
Henderson and Goode from the venire panel were pretextual. With respect to venirepersons Grooms and Simmons,
the court also concluded that, because Malone made no attempt to persuade the court that the prosecutor’s reasons
for striking them were pretextual, he was not entitled to habeas relief.

As an initial matter, because the Missouri trial court, the state post-conviction court, and the Missouri
Supreme Court have all considered the Batson issue on the merits, the federal habeas court should do the same. In
the alternative, assuming the Batson claim was not denied on the merits but because Malone’s Rule 29.15 motion
was unverified, the claim nonetheless should have been considered by the federal habeas court on the merits because,
as discussed previously, the verification requirements were not firmly established or regularly followed when the
Missouri Supreme Court decided Malone.

Malone established a prima facie case under Batson. As the state now concedes, Malone is black.17
Moreover, the prosecutor struck all four blacks who remained on the thirty-four-person jury panel after all other
panel members had been either successfully challenged for cause or excused for other reasons.

I next consider whether the government offered race-neutral reasons for peremptorily challenging all four
blacks on the thirty-four-person venire from which the jury was selected. “[U]nder Batson, the striking of a single
black juror for racial

17
The record overwhelmingly supports this fact of Malone’s race. At every point
in the trial, he was referred to as a black man. It is difficult to understand the confusion
of this question at various points in Malone’s state proceedings, such as when the trial
court reported that Malone was “an Asiatic-Moorish-American.”

-31-
reasons violates the equal protection clause, even though other black jurors are seated, and even when there are valid
reasons for the striking of some black jurors.” United States v. Battle, 836 F.2d 1084, 1086 (8th Cir. 1987) (citing
United States v. Gordon, 817 F.2d 1538, 1541 (11th Cir. 1987); and United States v. David, 803 F.2d 1567, 1571
(11th Cir. 1986)). Thus, a single, improperly-stricken juror constitutes a basis for granting a new trial.

I agree with the district court that the prosecutor stated a race-neutral reason for challenging Kenneth
Grooms. Grooms stated during voir dire that he opposed the death penalty. Moreover, I find no evidence in the
record that the prosecutor’s reason for striking Grooms was pretextual. I note, however, that there is no support in
the record for the prosecutor’s statement that Grooms indicated he would attempt to convince other jurors of his
view.

In contrast, the district court’s decision to sustain the state’s peremptory challenges to Henderson and
Simmons is not fairly supported by the record. The prosecutor testified at Malone’s post-conviction hearing that
he struck Kim Henderson because she had been the victim of an armed robbery in 1980 and no one had been charged
in the offense. In this circuit it is well established that a litigant may not justify the peremptory challenges to a
venireman of one race unless veniremen of another race with comparable or similar characteristics are also
challenged. Davidson v. Harris, 30 F.3d 963, 965 (8th Cir. 1994); Walton v. Caspari, 916 F.2d 1352, 1361-62 (8th
Cir. 1990); Garrett v. Morris 815 F.2d 509, 513-14 (8th Cir. 1987). In other words, Malone can establish that an
otherwise neutral explanation is pretextual by showing that the characteristics of a stricken black panel member are
shared by white panel members who are not stricken. According to the voir dire transcript, the prosecutor failed to
strike several white panel members who also had been victims of robberies or burglaries in which no one had been
charged for the offense. These included Gerald J. Bush (house broken into in 1977; no one charged), Kenneth G.
Hrebec (father’s grocery store robbed two or three times over ten years before trial), Janet I. Pettigrew

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(home broken into three or four years before trial), and Minnie B. Hopkins (home broken into twice ten years before
trial). The prosecutor did not specifically ask Henderson whether the fact that no one had been charged in her case
would affect her view of Malone’s case. To the contrary, when asked, along with other members of the panel,
whether the fact that she or her friends or relatives had been crime victims would prevent her from being a fair and
impartial juror in this case, Henderson did not indicate that she would have any problems. Therefore, despite the
state’s proffer of a race-neutral reason for excluding Henderson from the jury, the record demonstrates that the reason
is pretextual. I thus believe it clear that the prosecutor violated Batson and Malone’s constitutional rights when he
excluded Henderson from the jury.

The prosecutor claimed that he struck Simmons based on his address in Berkeley, that the murder occurred
in Berkeley, that Malone had ties to persons in Berkeley, and that some of the trial witnesses were friends of Malone.
The district court accepted these reasons as race neutral. The court also stated that Malone failed to argue that the
prosecutor’s reason was pretextual. I disagree with both conclusions. At voir dire, the prosecutor did not ask
Simmons a single question, let alone questions about where he lived, the extent of his ties to the Berkeley area, or
whether he was acquainted with any of the potential witnesses. It was not until the post-conviction hearing that the
prosecutor advanced the claim that he struck Simmons for the reasons stated above. Yet, he failed at the post-
conviction hearing to develop any testimony that could reasonably support his belief that Simmons might be
influenced in any way by the fact that he lived in the area where the murder occurred. Moreover, I cannot accept the
district court’s assertion that Malone is without recourse because he failed to argue that the reason advanced by the
prosecutor at the post-conviction hearing was pretextual. That the prosecutor’s rationale was entirely ad hoc and
unsupported by any statement at voir dire is sufficient to raise the issue of pretextuality. On its face, I do not believe
that the prosecutor’s reason was race neutral given the concentration of persons of color living in Berkeley.
Moreover, even if the proffered reason were considered race neutral, Malone has established that it was pretextual
in light of the fact

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that Simmons was asked no relevant questions and volunteered no relevant information to support the prosecution’s
position.

Finally, I am convinced that the district court erred in sustaining the state’s peremptory challenge to alternate
Goode. The prosecutor stated that he struck Goode because he looked familiar to him and because he was the son
of a minister or pastor of a church. Neither reason withstands scrutiny. The colloquy between the prosecutor and
Goode was as follows:

MR. McCULLOCH: . . . . Mr. Goode -- I don’t know -- while I’ve been sitting here, you
look very familiar to me. Do I look familiar to you? Do you think you know me at all?

VENIREMAN GOODE: Not off hand.

MR. McCULLOCH: You work for the Postal Service?

VENIREMAN GOODE: Right.

MR. McCULLOCH: Are you a letter carrier?

VENIREMAN GOODE: No. A truck driver.

MR. McCULLOCH: Okay. Well, that wouldn’t be it. You live in the Ferguson area?

VENIREMAN GOODE: No. Florissant.

MR. McCULLOCH: Florissant?

VENIREMAN GOODE: Um-hum.

MR. McCULLOCH: That could be it, from the Florissant area. In any event, I don’t look
too familiar to you, do I? You don’t think you know me?

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 VENIREMAN GOODE: No, I don’t.

Id. at 223-24. Later, Malone’s counsel questioned Goode as follows:

MR. AYLWARD: Okay. Mr. Goode, do you attend any church or --

MR. GOODE: Yes, I do.

MR. AYLWARD: Do you attend regularly?

MR. GOODE: Yeah. My dad, he’s a pastor.

Id. at 238. It is apparent from the colloquy that the prosecutor had little or no basis for his claim of familiarity; and,
in any case, the state did not develop the record to suggest how any familiarity might adversely affect Goode’s ability
to sit on the jury. As to the second reason, Malone has established that it was pretextual because Gerald J. Bush,
the jury foreman, had spent seven years in the ministry and he was not challenged by the prosecutor.18

18
In addition, Bush stated that his home had been broken into in 1971 and no one
was prosecuted. Bush revealed the following at voir dire:

MR. AYLWARD: Are you affiliated with any religious group?

VENIREMAN BUSH: To a certain degree, yes. I spent
approximately seven years in the ministry.

MR. AYLWARD: Do you attend church at this time?

VENIREMAN BUSH: Yes.

MR. AYLWARD: And your family as well?

VENIREMAN BUSH: Yes.

Id. at 137-38. According to the prosecutor’s testimony, a similar incident justified the
exclusion of Henderson from the jury. Thus, the jury foreperson, a white male,
possessed two of the traits allegedly deemed unacceptable by the prosecution.

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 IV.

In both his state and federal habeas corpus petitions Malone claimed that his trial counsel provided
ineffective assistance at the penalty phase of his trial by failing to investigate and present mitigating evidence.
Specifically, Malone claims that his trial counsel failed to interview or call his family members failed to have Malone
psychologically evaluated or present available evidence of Malone’s psychological history. Although the district court
concluded that Malone’s counsel rendered effective assistance, I disagree.

To succeed on his claim of ineffective assistance of counsel, Malone must show (1) that his counsel’s
performance was professionally unreasonable under all the circumstances, and (2) that there is a reasonable
probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 694 (1984). “When a defendant challenges a death sentence[,] . . . the
question is whether there is a reasonable probability that, absent the errors, the sentencer--including an appellate
court, to the extent it independently reweighs the evidence--would have concluded that the balance of aggravating
and mitigating circumstances did not warrant death.” Id. at 695. Always, the ultimate focus of inquiry must be on
the fundamental fairness of the proceeding whose result the defendant challenges. Id. at 696.

In a death penalty case, counsel is obligated to collect as much information as possible about the defendant
for use at the penalty phase. Hill v. Lockhart, 28 F.3d 832, 845 (8th Cir. 1994). This is so because the sentencing
battle must be one between the particularized nature of the crime and the particularized characteristics of the

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individual defendant. Woodson v. North Carolina, 428 U.S. 280, 303 (1976) (holding unconstitutional a state first-
degree-murder statute that carried automatic death sentence); see also Eddings v. Oklahoma, 455 U.S. 104, 112
(1982); Lockett v. Ohio, 438 U.S. 586, 605 (1978). As the Supreme Court has stated:

[I]n capital cases the fundamental respect for humanity underlying the Eighth Amendment requires
consideration of the character and record of the individual offender and the circumstances of a
particular offense as a constitutionally indispensable part of the process of inflicting the penalty of
death.

Woodson, 428 U.S. at 304 (internal citation omitted).

Under all the circumstances, the jury at Malone’s trial was given no sense of the person he was. At the guilt
phase of Malone’s trial, the jury returned its verdict at 11:00 p.m. on Friday, March 30, 1984. Despite the late hour
and the fact that the next day was Saturday, the penalty phase of the trial began at 9:30 on the morning of March 31.
The entire proceeding--including the jury’s deliberation on the appropriate punishment--lasted only four hours.
Malone was not even present during the penalty phase of the trial, having refused to attend. The only additional
evidence submitted by the state were Malone’s prior convictions and sentences from California which the prosecutor
read to the jury from certified court records.

For its part, the defense presented just one witness: a professor from St. Louis University who offered his
general, expert opinion that the death penalty was not an effective deterrent to crime. Malone’s trial counsel offered
no evidence to personalize, or even humanize, Malone in the eyes of the jury. He did not investigate or present
evidence about Malone’s family, his upbringing, or his social, educational, psychological, or physical history. In fact,
although trial counsel asked the jury to find

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that Malone’s age at the time of the offense was a mitigating factor, he never even told the jury how old Malone
was.19

Testimony developed during the state post-conviction proceedings reveals that Malone’s lawyer did nothing
to investigate or develop mitigating evidence in preparation for trial. His conversations with Malone were so limited
that trial counsel did not even know that Malone had two children. Malone’s lawyer failed to speak to either of his
parents, both of whom later stated for the record that they would have readily testified on their son’s behalf as they
did during his two California trials.20 He did not request a psychological evaluation of his client nor did he review
the extensive psychological profiles developed on his client for the California proceedings. According to the record,
Aylward made no specific preparations for the penalty phase other than to contact one academic and one religious
expert on capital punishment.

The district court accepted the government’s argument that counsel’s decision not to call family members
was a strategic one prompted primarily by Malone’s expressed preference not to put his family through the painful
process again. Under the first prong of Strickland, a particular decision not to investigate is assessed for
reasonableness under the circumstances and a heavy measure of deference applies to counsel’s judgments. 466 U.S.
at 691. Under the circumstances, however, it was unreasonable for counsel to completely abdicate his duty to
investigate and to

19
Malone had just turned twenty years old at the time of the offense. By the time
of this Missouri trial, Malone was twenty-three years old and had spent the better part
of the preceding three years doing “hard time” at San Quentin Prison. The record also
indicates that Malone had a beard at the time of trial. Thus, it would have been
unreasonable to expect the jury to intuit that Malone was a young man at the time of
the offense based solely on his physical appearance at trial.
20
Malone’s mother testified that, while she knew her son had been moved
temporarily from California to Missouri, she was unaware that he was standing trial in
Missouri for capital murder until well after his conviction and sentence.

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understand the very life he was asking the jury to spare. His performance is readily distinguishable from the
examples cited in Strickland as circumstances in which limited or nonexistent investigation might be reasonable:

[W]hen the facts that support a certain potential line of defense are generally known to counsel
because of what defendant has said, the need for further investigation may be considerably
diminished or eliminated altogether. And when a defendant has given counsel reason to believe that
pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those
investigations may not later be challenged as unreasonable.

Id. Malone and his lawyer barely communicated until two weeks prior to trial, at which point counsel focused
primarily on preparing for the guilt phase of the trial by reviewing investigative reports prepared by the state. Thus,
Malone’s lawyer knew very little about what he might find if he investigated Malone’s personal history. It follows
that, without knowing what information Malone’s family could provide the defense, it was unreasonable for counsel
to use Malone’s reluctance to cause his family pain as a justification for not doing the work involved in developing
a picture of Malone’s character and history. Without the necessary background information, Malone’s counsel was
in no position to advise Malone on the importance of the mitigating evidence and on the likelihood that his family’s
testimony might save his life. It seems clear that counsel’s performance during the penalty phase of Malone’s trial
was unreasonably deficient.

With respect to the second prong of Strickland, Malone suffered prejudice as a result of his counsel’s
deficient performance. Because Malone had twice stood trial for capital murder in California, his Missouri trial
counsel had a wealth of information from which he could have drawn a picture of Malone for the jury. But for
counsel’s failures, the jury would have learned the following information from his family, friends, educators, and
diagnosing psychologists: Malone is a mixed-race son of a white

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mother and a black father. He is the third child and oldest boy in a family of seven children. Malone is also the
father of two children who were ages one and four at the time of his trial. His father’s career in the military until
1971 kept him from the family for long periods during most of Malone’s childhood and the family moved often.
These frequent relocations interrupted his education and exacerbated his academic and disciplinary problems.
Although Malone lived variously in West Point, New York; Fort Court, Texas; Wursbury, Germany; St. Louis,
Missouri; and Honolulu, Hawaii, his most consistent childhood home was the city of Seaside, California which
suffered intense racial tension during Malone’s youth. He was teased constantly for his mixed-race background and
had difficulty finding acceptance with either the white community or with the burgeoning black power movement.
Malone’s small size and frail physical condition also made him a target for constant ridicule. Malone dropped out
of school in the tenth grade. His siblings and schoolmates universally described him as unpopular, hyperactive, a
loner, and a child who was easily manipulated and bossed around.

Kelvin had several falls and resulting head injuries as a child. Two of them required overnight stays in the
hospital, the first when he was approximately eighteen months old and the second when he was about ten years old.
Malone’s parents attributed many of Malone’s academic and social problems to these head injuries. Dr. Craig Rath,
a clinical psychologist who testified during the penalty phase of Malone’s trial in San Bernardino, California,
disagreed. Dr. Rath spent at least nine hours with Malone over several visits while he was detained in California,
administered psychological tests, and reviewed approximately sixty-four defense reports based on interviews with
persons in Malone’s past. Based on that information, Dr. Rath positively diagnosed Malone as having suffered from
untreated attention deficit disorder (ADD) as a child and with residual ADD and antisocial personality disorder since
adulthood. Dr. Rath explained that in residual type ADD, the hyperactivity that characterizes childhood behavior
often goes away but problems with impulsivity, attention span and organizational skills remain. Dr. Rath also
determined that, because

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Malone’s ADD was the result of a small amount of organic brain damage, the roots of his problems are partially
nonvolitional. Dr. Rath’s diagnosis is corroborated by the less-detailed 1982 report of Dr. William Jones, another
licensed clinical psychologist in California. Dr. Williams examined Malone and found that he had a history of head
trauma and “weak indications of underlying neurological dysfunction.”

While I acknowledge that none of this information about Malone’s personal history would have required
the jury to find any statutory mitigating circumstance beyond a reasonable doubt, the fundamental fairness of the
penalty-phase proceedings must be questioned. See Strickland, 466 U.S. at 696. I am convinced of the reasonable
probability that, had the jury been apprised of Malone’s history, it would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death. Id. at 695.

V.

Therefore, I would reverse the district court’s denial of habeas corpus relief for two reasons, both of which,
for the reasons I have discussed, were properly preserved for our review. First, the jury was impaneled in violation
of Batson and the prosecution’s intentional, racially-motivated exclusion of all black members of the venire panel
violated Malone’s equal protection rights. Second, Malone was denied the effective assistance of counsel at the
penalty phase of his trial. Each of these constitutional errors constitutes an independent basis for the issuance of a
writ of habeas corpus. I have examined each of the other claims of error in Malone’s petition and agree with the
district court and the majority that none of them justify relief. I would remand the case to the district court with
orders to issue a writ of habeas corpus directing the state court to vacate Malone’s sentence and conviction.

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A true copy.

Attest.

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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