Vernon Brown v. Allen Luebbers

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________

No. 02-1845EM
_____________

Vernon Brown, *
*
Appellant, * On Appeal from the United
* States District Court
v. * for the Eastern District
* of Missouri.
Allen D. Luebbers, *
*
Appellee. *
___________

Submitted: January 16, 2003
Filed: September 19, 2003 (corrected 12/16/03)
___________

Before BOWMAN, RICHARD S. ARNOLD, and BYE, Circuit Judges.
___________

RICHARD S. ARNOLD, Circuit Judge.

Vernon Brown appeals from the decision of the District Court denying his 28
U.S.C. § 2254 (2000) petition for a writ of habeas corpus. We affirm in part and
reverse in part.

In 1991, a jury convicted Brown of first-degree murder in the 1985
strangulation death of Synetta Ford in St. Louis, Missouri, and he was sentenced to
be executed. His motion for state post-conviction relief filed pursuant to Missouri
Supreme Court Rule 29.15 was overruled. That decision, as well as Brown's
conviction and sentence, were affirmed in a consolidated appeal taken to the Missouri
Supreme Court. State v. Brown, 998 S.W.2d 531 (Mo.) (en banc), cert. denied, 528
U.S. 979 (1999).

In 2000, Brown filed in the District Court a petition for a writ of habeas corpus,
raising thirty-one grounds for relief. The District Court denied Brown's petition but
granted a certificate of appealability on eleven grounds. Brown has combined the
arguments on some of his claims and presents eight issues on appeal.

I.

First, combining his original habeas grounds 13 and 27, Brown takes issue with
the comment in boldface below, made by the prosecutor in his closing statement when
he was speaking of conversations Brown had with his wife, Kathy Moore, and with
investigators prior to his indictment for Ford's murder:

Now, is the story that he told Kathy Moore strange and other
worldly? Is the story that he told the police strange and other worldly?
You bet. This is a strange, strange man. He's not going to testify, not
going to tell a story like a normal individual. You have heard
uncontested testimony from Ms. Kraft in her questioning of Sergeant
Roussin that this man not only confessed to the murder of a nine year
old child, a little girl named Janet Perkins, but as Ms. Kraft pointed out
in questioning Sergeant Roussin, he told the police where to find Janet
Perkins' belongings.

The point I'm trying to make is not that his statement about Janet
Perkins is necessarily – that his statement about the murder of Janet
Perkins is evidence of his guilt in this case, it is not, but it is a strange,
strange man, ladies and gentlemen, that would kill a nine year old girl
and tell the police where to find that child, that dead child's belongings.
I would submit to you, ladies and gentlemen, that both of the strange
stories he told to his wife and to the police on videotape are consistent
with a very, very strange human being.

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Trial Transcript at 2181–82 (emphasis added). Trial counsel did not object, nor did
the trial court act sua sponte to declare a mistrial, as Brown suggests it should have.
Moreover, his Rule 29.15 counsel did not properly present a claim that trial counsel
was ineffective for failing to object to the prosecutor's remark.

Brown claims that the prosecutor was commenting upon Brown's exercise of
his constitutional right not to testify (and not to have it noted in the presence of the
jury), that trial counsel was ineffective for failing to object, and that as a
consequence, his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments
were violated. The State (represented in this case by warden Allen D. Luebbers)
contends that these claims are procedurally barred from consideration in a § 2254
proceeding, and the District Court so held. We review de novo. Frasier v. Maschner,
304 F.3d 815, 817 (8th Cir. 2002), cert. denied, 123 S. Ct. 1758 (2003).

A claim raised in a § 2254 petition will not be deemed procedurally defaulted
unless the petitioner has been provided a "firmly established and regularly followed
state practice" by which to have his federal constitutional claims considered in state
court. Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (quoting James v. Kentucky,
466 U.S. 341, 348 (1984). As we understand Brown's position, he is arguing that
the state practice is inadequate to foreclose § 2254 consideration of his claim.
Because his trial counsel failed to object to the prosecutor's statement as an
unconstitutional comment upon his right not to testify, that claim could be considered
by the state courts only indirectly, in post-conviction proceedings raising the
constitutional ineffectiveness of counsel—that is, objectively deficient performance
by counsel and, as a result, actual prejudice that deprived Brown of a fair trial. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). Here, as Brown concedes, post-
conviction counsel raised the issue of ineffectiveness in the Rule 29.15 proceedings
but did not allege the necessary prejudice from trial counsel's failure to lodge an
objection to the comment. As a consequence, the Rule 29.15 court held that the claim

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was not cognizable in the state post-conviction proceedings. Thus, according to
Brown, "there was nothing for the petitioner to appeal concerning it to the state
supreme court." Br. of Appellant at 42. By Brown's reckoning, the Rule 29.15 court's
holding that his claim was not cognizable is an admission that the state affords him
no remedy for his claimed violation of rights.

We disagree not only with Brown's characterization of what took place in the
Rule 29.15 proceedings, but also with his reasoning. The Missouri state courts do,
in fact, provide procedures by which constitutional questions such as those at issue
here can be addressed in the first instance by the state courts. Brown's problem is that
he did not avail himself of the procedures that were in place: trial counsel did not
object to the comment, and post-conviction counsel did not properly allege trial
counsel's ineffectiveness. These are substantive, well-established procedures that
Brown was required to follow in order to have his claims considered post-trial and
not, as Brown argues, merely "formal 'ritual . . . [that] would further no perceivable
state interest.'" Lee v. Kemna, 534 U.S. 362, 366 (2002) (alteration in original)
(citations to quoted cases omitted) (holding that a due process claim was not
procedurally defaulted where the state argued that the default was the result of trial
counsel's failure to follow that portion of a court rule that called for a written motion
from a party seeking a trial continuance). If we were to hold that Brown's failure to
raise his claim in state court was in reality a failure of the state procedure, it is hard
to imagine a situation where a federal court could hold that a claim was procedurally
defaulted. Such a holding would therefore foil the intent of Congress to further the
interests of federalism and finality in § 2254 cases—an intent demonstrated by the
inclusion of statutory provisions for the procedural default of federal constitutional
claims when the petitioner fails to allow the state courts the opportunity to consider
them in the first instance.

As we have said, Brown admitted in his § 2254 petition that his constitutional
claims that derive from the prosecutor's comment were not properly presented to the

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Rule 29.15 court and were not raised in his consolidated state-court appeal. In these
circumstances, his habeas claims are procedurally defaulted and they will be
barred—that is, we will not consider them on federal habeas review—unless Brown
can demonstrate cause and prejudice for the default, or unless he can show that the
federal habeas court's failure to consider the issues will result in a miscarriage of
justice because he is actually innocent. See Sawyer v. Whitley, 505 U.S. 333, 338–39
(1992). As an alternative argument to his contention that there can be no procedural
default because there is no state remedy, Brown insists that the cause for his default
is his Rule 29.15 counsel's constitutional ineffectiveness in failing to raise the issue.
Notwithstanding Brown's argument that it should be otherwise, it is the law of this
Circuit that alleged ineffectiveness of state post-conviction counsel cannot supply the
required cause to excuse a procedural default. Oxford v. Delo, 59 F.3d 741, 747–48
(8th Cir. 1995), cert. denied, 517 U.S. 1124 (1996); see also Nolan v. Armontrout,
973 F.2d 615, 617 (8th Cir. 1992) (citing Coleman v. Thompson, 501 U. S. 722,
752–54 (1991)). And as we have said many times, one panel of this court may not
overrule the holding of another. See, e.g., Burns v. Gammon, 173 F.3d 1089, 1092
(8th Cir. 1999). Further, Brown does not claim that he is actually innocent, so there
can be no miscarriage of justice.

In sum, we will not consider the merits of Brown's claims related to the
prosecutor's comment, because they are procedurally barred. The District Court's
denial of habeas relief on these grounds is affirmed.

II.

The District Court also granted a COA on Brown's ground 11. Brown claims
his constitutional rights were violated when the trial court excluded parts of the
testimony of social worker Jill Miller during the sentencing phase of the trial.

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 Following an offer of proof, during which Miller was examined by Brown's
counsel, the trial court indicated that it would sustain the prosecutor's objections to
Miller's testimony "that the defendant told her he had a head injury as a child, that he
had headaches and that he had been sexually abused as a child when he was five years
old." Trial Transcript at 2400–01.1 Further, during Miller's testimony before the jury,
the prosecutor's hearsay objections were sustained when the witness was asked about
what Brown had told her regarding various matters, including his health problems,
his history of sexual encounters, his relationship with his grandmother, the activities
he enjoyed as a child, his experience in prison, the death of friends who were
important to him, his alcohol and drug usage, and physical abuse he had sustained.
The witness was not precluded from testifying to what she had learned about Brown
from others who were not present in the courtroom (indeed, she was never asked
about that when testifying before the jury2); to what she had learned from reading
available school, prison, and medical records; to her impressions of Brown,
presumably formed in large part from her conversations with him; and to Brown's
description of himself. The questions to which objections were sustained were
queries about the content of her conversations with Brown: "Did you discuss with
Vernon Brown whether or not . . . ?"; "Did you talk with Vernon regarding . . . ?";
"What did he tell you . . . ?"; "Did you talk to him with regard to . . . ?"; "Did he
indicate to you . . . ?" Trial Transcript at 2410–15. We have read the transcript of the
proffer and Miller's actual testimony before the jury and conclude that it is not true,
as Brown suggests, that Miller was prevented from testifying to her opinion on a topic
for which she was qualified as an expert.

1
Miller actually did testify to the headaches, as that information appeared in
some of the records she reviewed.
2
Brown contends that the "state trial judge did what the prosecutor wanted"
when the prosecutor objected to testimony "about anything anyone had told" Miller.
Br. of Appellant at 73. That allegation is unsupported by the record. She simply was
not asked while testifying to report what others had told her about Brown.

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 In Brown's consolidated appeal, the Missouri Supreme Court addressed only
the evidentiary issue regarding the trial court's exclusion of Miller's testimony as self-
serving hearsay, concluding that the lower court did not abuse its discretion in
refusing the testimony. The Supreme Court did not mention the constitutional
question raised by Brown. This clearly leaves the federal courts with no state
decision to which to apply the § 2254 standards, so we will review de novo the
District Court's decision on the merits of the constitutional issue. Further, as with the
Turner letter, we do not have jurisdiction to consider Brown's quarrel with the trial
court's evidentiary rulings, except to the extent that the exclusion of the testimony is
alleged to have violated Brown's federal constitutional rights.

As noted above, Brown must show egregious and prejudicial error as a result
of the testimony's exclusion in order to sustain a federal due process claim. We do
not believe he has done so. Brown was sitting in the courtroom able to testify to
everything that was excluded from Miller's testimony. And some of it came in via
other mitigation witnesses. The evidence that was excluded, while arguably
mitigating, was not overwhelmingly so—unlike the compelling evidence of
aggravating factors. We conclude that any error in excluding the evidence in question
was not "gross, conspicuously prejudicial or of such import that the trial was fatally
infected." Griffin, 33 F.3d at 904.

The denial of habeas relief on Brown's ground 11 is affirmed.

III.

For his next point, his habeas ground 8, Brown challenges the state court
rulings on his inculpatory statements that were used against him at trial.

Synetta Ford was murdered in March 1985. Police questioned Brown at the
scene, and he told them that he had seen Ford arguing with a Cuban man. After being

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questioned by police on three subsequent occasions, Brown left town on March 28,
1985, telling his wife, Kathy Moore, that he was tired of the questioning. He
instructed Moore to tell police that he had been abducted at gunpoint by three men
in a red Pinto. On April 1, Moore told that story to police when they came looking
for him; on April 2, she told police that Brown had told her that he had killed Ford.
On April 24, 1985, Brown was arrested for Ford's murder and told police the
abduction story. Soon after, Moore said she had lied to police about Brown telling
her that he had committed the murder, so the charges against Brown were dropped.

On October 27, 1986, Brown was arrested for the murder of nine-year-old Janet
Perkins, waived his right to have counsel present during questioning, and confessed.
Prosecutors filed a complaint on October 28 charging him with the Perkins murder.
Counsel from the public defender's office visited with Brown the next morning,
sometime around 8:30 or 9:30, and found him to be indigent. Later that morning,
around 11:30, the officers who were investigating Synetta Ford's death visited Brown
and read him his rights; Brown agreed to talk with them. During the course of the
afternoon, after two additional Miranda3 readings and two waivers of those rights,
Brown made incriminating statements, eventually memorialized on videotape, telling
this story: Brown struggled with Ford in her apartment when she came at him with
a butcher knife. According to Brown, Ford swung the knife wildly and stabbed
herself in the chest. Then she removed the knife and attacked Brown again, at which
time he wrapped the cord of an electric curling iron several times around her neck and
knotted the cord. As the struggle continued, she stabbed herself again, this time in
the throat, and Brown left.

The trial court denied Brown's motion to suppress his statements. Brown
raised the issue in his direct appeal to the Missouri Supreme Court, where the point
was denied. In his § 2254 petition, he contends that his constitutional rights were

3
Miranda v. Arizona, 384 U.S. 436 (1966).

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violated when the court allowed his statements to be used against him because (1) he
should not have been questioned about the Ford murder when counsel representing
him on the Perkins murder charges was not present and (2) his statement was not
voluntary, intelligent, and knowing because he was high on phencyclidine (PCP), and
any waiver of his Miranda rights therefore was invalid. The District Court denied
relief but granted a COA on these claims.4

A.

Brown's claim that his statements about Ford were illegally obtained was first
raised when the State used the Ford statements against him in the Perkins trial, after
which he was convicted of murder and sentenced to death. State v. Brown (Perkins
case), 902 S.W.2d 278, 291–92 (Mo.) (en banc), cert. denied, 516 U.S. 1031 (1995).
As to the interrogation in the absence of counsel, the Missouri Supreme Court, in
denying Brown's claim in this case, cited its opinion in Brown's appeal in the Perkins
case. Brown (Ford case), 998 S.W.2d at 547. In the Perkins consolidated appeal, that
court had cited McNeil v. Wisconsin, 501 U.S. 171 (1991), in denying Brown's
assertion that the Ford statements were illegally obtained. Brown (Perkins case), 902
S.W.2d at 292.

In McNeil, the defendant was under arrest for armed robbery and was
represented at a preliminary appearance by a public defender. Later that day, a
detective working a murder investigation met with McNeil and advised him of his
rights. McNeil signed a waiver and was questioned but denied being involved in the
activities surrounding the murder. But two days later, after again waiving his rights,
the defendant admitted involvement, and two days after that, he provided another

4
In his brief, Brown states that "[t]he district court erred in denying, as
procedurally barred, the petitioner's Ground 8." Br. of Appellant at 79. That was not
the court's basis for denying relief.

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incriminating statement. The trial court declined to suppress the statements and the
state appellate court affirmed. The United States Supreme Court granted certiorari
in the case and affirmed. The Court declared that the Sixth Amendment right to
counsel is "offense specific. It cannot be invoked once for all future prosecutions, for
it does not attach until a prosecution is commenced, that is, "at or after the initiation
of adversary judicial criminal proceedings – whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment." McNeil, 501 U.S. at
175 (quotation marks and citations to quoted cases omitted). "Incriminating
statements pertaining to other crimes, as to which the Sixth Amendment right has not
yet attached, are, of course, admissible at a trial of those offenses." Id. at 176
(citations to quoted cases omitted).

Brown attempts to distinguish McNeil by insisting that the Perkins and Ford
cases were treated as "intertwined" by the prosecution "[f]rom beginning to end." Br.
of Appellant at 80. He notes that a single indictment in November 1986 charged
Brown with both murders, albeit in separate counts, and that evidence from each case
was used in Brown's trial in the other. Brown's contention that these connections
between the two cases preclude the application of otherwise controlling precedent is
of no avail.

Assuming that two discrete crimes could be so related that the teachings of
McNeil would not apply, these are not those cases. The two murders were committed
at different times, more than a year and a half apart, and with distinctly different
victims and apparent motives. A complaint was filed against Brown in the Perkins
case on October 28, 1986; it was not until November 18, 1986, almost three weeks
after the interview in question, that the state initiated adversarial judicial criminal
proceedings in the Ford case and Brown's right to counsel for that murder attached.
And although the November indictment included both counts, the cases ultimately
were severed for trial.

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 We agree with the District Court's conclusion that the state court's decision was
not contrary to clearly established law, as set forth in McNeil, nor did it involve an
unreasonable application of that law. Indeed, it is a completely faithful application
of clearly established Supreme Court precedent. And to the extent the state court's
decision relied on findings of fact, those factual determinations are not unreasonable
in light of the evidence that was before the court.

B.

Brown also claims that his inculpatory statements in the Ford case were not
voluntary, intelligent, and knowing because he was under the influence of PCP during
the interrogation, and so his constitutional rights were violated when the statements
were admitted into evidence at his trial.

The public defender initially assigned to meet with Brown after charges were
filed in the Perkins case testified at the pretrial hearing that when he interviewed
Brown at 8:30 or 9:30 in the morning of October 29, 1986, the same day Brown made
the incriminating statements in the Ford case, Brown "appeared to be kind of sleepy
or dazed." Trial Transcript at 47 (pretrial motion). Brown told his counsel that he
had smoked cigarettes dipped in PCP at some time before his arrest, which was two
days earlier, but counsel "didn't know personally if he was" under the influence of
alcohol or drugs on the 29th. Id. One of the detectives who talked with Brown
around the time of the Ford murder in March 1985 and who participated in the
interview on October 29, 1986, said of Brown at the hearing, "I've never seen him in
a condition that I thought he was high on drugs or alcohol." Id. at 36. The detective
said Brown did not appear tired and was calm when the officers interviewed him.

The Missouri Supreme Court noted that Brown was adequately informed of his
Miranda rights: he was told of those rights several times during the interview, he
indicated each time that he understood them, and he twice signed a waiver. At the

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end of the last step in the interview (Brown's fifty-five-minute videotaped statement),
Brown indicated that he was not under the influence of drugs or alcohol. In any
event, the court said, a "defendant's physical and mental condition is not the critical
question in determining if defendant's statements were voluntary." Brown (Ford
case), 998 S.W.2d at 547. That court was correct. There is no constitutional "right
of a criminal defendant to confess to his crime only when totally rational and properly
motivated." Colorado v. Connelly, 479 U.S. 157, 166 (1986) (holding suppression
was properly denied notwithstanding testimony of a psychiatrist that defendant was
schizophrenic and in a psychotic state at least the day before he confessed).5 Where
the allegation of involuntariness relies on the mental condition of the defendant,
"coercive police activity is a necessary predicate to the finding that a confession is not
'voluntary' within the meaning of the Due Process Clause of the Fourteenth
Amendment." Id. at 167. Otherwise, the admission of a defendant's statement that
was made when a question could be raised about the defendant's mental state is a
matter of state evidentiary law. Id.

The District Court concluded that the state court's decision did not reflect an
unreasonable application of clearly established federal law or an unreasonable
determination of the facts, and that the decision was not contrary to clearly
established federal law. We agree. Even assuming that Brown, when questioned
about the Ford murder while in custody for the Perkins murder, was impaired by his
earlier voluntary use of PCP, it was not an unreasonable application of Connelly to
conclude that Brown's constitutional rights were unaffected by the trial court's

5
The Missouri Supreme Court actually quoted one of its own cases using nearly
identical language to that used by the United States Supreme Court in Connelly and
cited no United States Supreme Court cases for the proposition. But reasonable
application of clearly established federal law "does not require citation of [United
States Supreme Court] cases — indeed, it does not even require awareness of [such]
cases, so long as neither the reasoning nor the result of the state-court decision
contradicts them." Early v. Packer, 537 U.S. 3, ___ , 123 S. Ct. 362, 365 (2002).

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admission of his statement, where there is no evidence of police coercion in the
taking of the statement. The state court's application of the relevant law to Brown's
claim is not only entirely reasonable, but also correct.

In sum, we affirm the District Court's denial of § 2254 relief on Brown's
ground 8.

IV.

Brown maintains that the District Court erred in holding that claims contained
within his § 2254 grounds originally numbered 6 and 14 were procedurally barred
and also erred in concluding that the state court did not unreasonably apply clearly
established federal law when it denied on the merits the one claim within those
grounds that had been properly presented to the state court.

The jurors were sequestered during Brown's trial, and a few had their motel
rooms burglarized while they were at dinner one weekend night during the trial.
Taken were $63.00, some socks, and a bag of snacks. The motel promptly reimbursed
the affected jurors for their losses and fired the members of the housekeeping staff
who were suspected of the burglaries. The next time court was in session, the trial
judge reported the incident to counsel, and a deputy recounted that only one juror
"was really upset, visibly upset, she was crying a little bit" when the burglary was
discovered. Trial Transcript at 2130. Brown's motion for a mistrial was overruled.
Brown contends that the trial judge should have granted a mistrial or, at the least,
should have questioned the jurors to determine if they could continue to be fair and
impartial to Brown notwithstanding that they were now crime victims. The trial
court's failures, Brown claims, resulted in violations of his rights under the Sixth,
Eighth, and Fourteenth Amendments. He further contends that trial counsel was
ineffective for failing to seek some action by the trial court short of a mistrial, such
as questioning the jurors about the incident, suggesting, we suppose, that the court

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would have found that one or more jurors could no longer be impartial to Brown and
would then have had the appropriate grounds to declare a mistrial.

We agree with the District Court's holding that Brown procedurally defaulted
his claim that the trial court violated his constitutional rights when it failed to
question the jurors about the burglary and its effect, if any, on their ability to be fair
to Brown. He did not raise the issue at trial or in his appeal. Likewise, he did not
claim ineffective assistance of counsel on this issue in his Rule 29.15 petition or on
appeal from the denial of the motion for post-conviction relief, so this claim is also
procedurally defaulted. Brown does not even attempt to describe cause for the
defaults. As for prejudice, he states summarily that "there is a reasonable probability
that these errors affected the jury's decision of death," but makes no effort to explain
why this is so. Br. of Appellant at 93. Further, he makes no claim of actual
innocence but merely says a failure to grant relief "would result in an extraordinary
miscarriage of justice." Id. Because he cannot show cause and prejudice or actual
innocence, the claims are procedurally barred and we will not consider them on the
merits in these § 2254 proceedings.

Brown did raise in the Missouri Supreme Court the issue of the trial court's
refusal to grant his motion for mistrial. The court denied relief, noting, "There was
no apparent indication that the jurors were biased against Brown because other
individuals burglarized their hotel rooms." Brown (Ford case), 998 S.W.2d at 549.
The court concluded that "no circumstances existed warranting" this "drastic remedy
reserved for the most extraordinary circumstances." Id.

Under clearly established federal law, " 'the right to jury trial guarantees to the
criminally accused a fair trial by a panel of impartial, "indifferent" jurors.' " See
Morgan v. Illinois, 504 U.S. 719, 727 (1992) (quoting Irvin v. Dowd, 366 U.S. 717,
722 (1961)). Brown argues that because jurors were described by the deputy as
"upset," bias should be presumed. The trial court inquired of the deputy who was

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responsible for shepherding the jurors and was satisfied that the incident did not so
affect their ability to be fair to Brown that a mistrial was called for. As we explained
above, the Missouri Supreme Court agreed. The District Court held that the state
court's decision was not contrary to clearly established federal law, an unreasonable
application of the law, or based on an unreasonable determination of the facts. Upon
review, we conclude that Brown has not shown otherwise.

We affirm the District Court's denial of § 2254 relief on Brown's claims 6 and
14.

V.

During voir dire, trial counsel for Brown informed the venire members that
Brown had been convicted of murder and sentenced to death in the Janet Perkins
case.6 For his habeas point 20, Brown maintains that his trial counsel was
constitutionally ineffective for doing so. According to Brown, trial counsel's
statements misled the jurors as to their responsibility for sentencing in the Ford case.

In order to prevail on this claim, Brown must be able to demonstrate that
counsel's performance was objectively deficient and that Brown thereby was so
prejudiced that he did not receive a fair trial. See Strickland, 466 U.S. at 687. The
Rule 29.15 court found that trial counsel's decision to bring up the Perkins matter
during voir dire "was a matter of trial strategy," an attempt to ensure "that the venire
persons would not automatically impose the death penalty when they found out about

6
Brown also mentions in his brief that counsel elicited testimony from a
detective that he, the detective, knew Brown had said that he had killed Perkins.
Brown did not raise this as a point of ineffectiveness in the state courts, and those
courts did not address it. And before this Court, Brown's argument is solely directed
to counsel's performance during voir dire and does not speak to the detective's
testimony elicited by counsel.

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it." Brown (Ford case), 998 S.W.2d at 550. And they surely would find out about it,
since the prosecution intended to argue to the jury in the sentencing phase that
Brown's conviction in the murder of Janet Perkins was an aggravating factor in the
Ford case. Further, Brown's trial counsel intended to use his Perkins confession
during the guilt phase of the trial to discredit his Ford statement. These were not the
strategies of a novice public defender. As the Missouri Supreme Court noted,
Brown's main trial counsel "was the head of the public defender's capital litigation
unit and one of the most experienced attorneys in the unit." Id.

Although the state courts did not mention Strickland, their conclusion that
counsel's actions were the product of a valid trial strategy is likewise a conclusion
that Brown did not meet the first part of the test for constitutionally ineffective
counsel—he did not show that counsel's performance was deficient. The District
Court concluded that the state courts' decisions were not contrary to clearly
established federal law or based on an unreasonable determination of the facts. We
agree and further hold that the decisions did not involve an unreasonable application
of Strickland.7

7
Brown insists that he "is entitled to relief for the reasons set forth in Caldwell
v. Mississippi," 472 U.S. 320, 339 (1985), in which, he says, the Court held that
"comments which cause the jury to believe the responsibility for determining the
appropriateness of the death penalty lies elsewhere" are constitutionally prohibited.
Br. of Appellant at 99. We grant that such comments by counsel, if actually made to
a jury, could constitute deficient performance, but that is not Brown's argument—he
does not bring up Caldwell in arguing that he has met the first part of the Strickland
test. In fact, he does not mention the Strickland test at all, notwithstanding that there
is no question that the test represents the clearly established law to apply to an
allegation of constitutional ineffectiveness of counsel. In any event, the record does
not support the contention that trial counsel's message to the veniremen was that they
were not going to bear responsibility for sentencing Brown to death.

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 The District Court went further and addressed the merits of the prejudice part
of the Strickland test, even though the state courts had not, and concluded that Brown
had not shown the necessary prejudice. We do not review this holding because it is
unnecessary for us to do so, given our deference to the opinion of the Missouri courts
on the question of counsel's performance.

The denial of § 2254 relief on Brown's point 20 is affirmed.

VI.

Brown contends that the District Court erred in concluding that his ground 24
was procedurally barred. For that claim, Brown alleges that his constitutional rights
were violated when the prosecutor, in reviewing the defense case during his rebuttal
argument to the jury, noted that trial counsel "called exactly two witnesses" and
further commented on the lack of evidence presented in Brown's defense. Trial
Transcript at 2178–79. Because these remarks were followed later in the argument
by the "not going to testify" comment discussed in part I of this opinion, Brown
maintains that the prosecutor's argument was an attempt to shift the burden of proof
from the State to Brown.

In his consolidated appeal, Brown raised only the issue regarding the
prosecutor's statements about the witnesses he called, contending that this alone
shifted the burden of proof. The Missouri Supreme Court rejected his claim, holding
that the remarks in question had no such effect. His argument now is that the
comment about his witnesses and the remark about his not testifying worked in
combination to violate his constitutional rights. But as we have said, he did not raise
a challenge in the state courts to the prosecutor's statement that "[h]e's not going to
testify." The District Court held that Brown's claim therefore was procedurally
defaulted and that because Brown had not shown cause and prejudice to excuse the
default, the claim is procedurally barred from consideration by the federal habeas

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court. In his brief to this Court, Brown steadfastly ignores the basis for the District
Court's denial of his point and fails to make any argument as to cause and prejudice,
presumably relying on the argument that we rejected in part I of this opinion. After
de novo review, we hold that the District Court did not err in concluding that this
claim is procedurally barred.

VII.

For his habeas ground 25, Brown alleges that the trial court erred in the
sentencing phase of the trial, and that his constitutional rights were violated when that
court refused his proposed instructions on mitigation. These instructions included a
list of fifteen nonstatutory mitigating factors.

Brown's first argument is that Missouri law at the time, by statute, required that
the proposed instructions be given. In Brown's consolidated appeal, the Missouri
Supreme Court noted that even before the statute in question was amended (in 1993,
but after Brown's trial) to prohibit a jury from being instructed on specific
nonstatutory mitigating factors, the court itself "required the trial courts not to list
nonstatutory mitigating circumstances in the instruction." Brown (Ford case), 998
S.W.2d at 551. The court reasoned that a list might be interpreted by jurors as
inclusive, preventing them from considering other evidence they might deem
mitigating. The state court then rejected Brown's argument, and Brown now alleges
that this was error. Once again, Brown is arguing that the Missouri courts
misinterpreted the State's own laws; this issue is not within our jurisdiction.

Brown further asserts that the trial court's failure to give his proposed
instructions on mitigating evidence deprived him of a constitutional liberty interest.
The District Court concluded that this claim was procedurally defaulted, and there
was no showing of cause and prejudice or actual prejudice to overcome the default,
so the claim was barred. Brown does not argue otherwise on appeal. But he also

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generally invokes the Sixth, Eighth, and Fourteenth Amendments in stating his claim:
that his rights were violated when the trial court refused his instructions on mitigation
but gave instructions listing the statutory and nonstatutory aggravating circumstances
that the prosecution maintained it had proved. The Missouri Supreme Court did not
adjudicate the merits of the constitutional claim, dealing only with the issue of state
law, so there is no state court decision to which we must defer. The District Court did
address the claim on the merits; we review that decision de novo.

The District Court relied on Buchanan v. Angelone, 522 U.S. 269 (1998), in
holding that Brown's constitutional rights were not violated when the trial court
rejected his instructions on mitigating evidence. In Buchanan, the trial judge gave an
instruction on a statutory aggravating factor and declined to give the capital
defendant's proposed instructions on statutory and general nonstatutory mitigating
circumstances. The jury recommended a sentence of death. The United States
Supreme Court distinguished between the "eligibility" phase and the "selection"
phase of a capital sentencing proceeding. "In the eligibility phase, the jury narrows
the class of defendants eligible for the death penalty, often through consideration of
aggravating circumstances." Id. at 275. The jury's discretion at this stage must be
limited "to ensure that the death penalty is a proportionate punishment and therefore
not arbitrary or capricious in its imposition." Id. at 275-76. In the next phase, where
mitigating circumstances have relevance, the jury decides whether the eligible
defendant should receive a death sentence. In this "selection" phase, "the sentencer
may not be precluded from considering, and may not refuse to consider, any
constitutionally relevant mitigating evidence." Id. at 276. But the Court, noting that
its previous "decisions suggest that complete jury discretion is constitutionally
permissible" during the selection phase, held that the trial court's refusal to instruct
the jury "on the concept of mitigation and . . . on particular statutorily defined
mitigating factors did not violate the Eighth and Fourteenth Amendments to the
United States Constitution." Id. at 276, 279.

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 The instructions given in Brown's case clearly directed the jury to consider
mitigating circumstances and to weigh them against any aggravating circumstances
when determining whether the death penalty was appropriate in Brown's case. In fact,
the jury was instructed that it could impose a life sentence even if mitigating factors
did not outweigh aggravating factors. Indeed, the mitigation instructions given to
Brown's jury were far more explicit than the one given in Buchanan, which simply
gave the jury the authority to sentence the defendant to life imprisonment instead of
death if it "believe[d] from all the evidence that the death penalty [was] not justified."
Id. at 272 n.1 (quoting the jury instructions). The absence from the instructions of
Brown's list of nonstatutory mitigating factors in no way precluded the jury from
considering the mitigation evidence; indeed, the instructions mandated that it do so.

Brown says that Buchanan is distinguishable because only statutory factors
were at issue in that case, not nonstatutory factors as in this case. But he does not
explain why this makes Buchanan inapplicable here, and we can discern no reason
that it should. Accordingly, we affirm the District Court's decision denying habeas
relief on Brown's point 25.

VIII.

We have said enough, so far, to reject all of the contentions that would
invalidate Brown’s conviction. We have also rejected all but one of his arguments
concerning the penalty phase. It remains to discuss the remaining point, which in our
opinion has merit. We think the trial court violated petitioner’s rights under the
Eighth Amendment and under the Due Process Clause of the Fourteenth Amendment
by excluding a letter written by Mr. Brown’s brother, Darius Q. Turner, who was on
active duty in the United States Army serving in the Middle East as part of Operation
Desert Shield. Petitioner wished to present the letter to the jury as mitigation
evidence. The letter cast petitioner in a much more positive light than did the State
of Missouri’s account of him. Among other things, the letter indicated that, as a

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child, petitioner had been very protective of his little brother and his friends. The
letter also indicated that petitioner continued to mean a great deal to his brother —
in fact, that petitioner meant more to his brother than did other family members. This
letter had the potential to sway the jury because it cast petitioner in such a positive
light and showed the continuing positive impact that his life could have if preserved.
The trial court excluded the letter on the ground that it was hearsay.

Petitioner alleges that the exclusion of the letter violated his constitutional
rights under the Eighth and Fourteenth Amendments. This question should be
decided under pre-AEDPA standards. In considering this claim, the Missouri
Supreme Court primarily addressed the question of state-evidentiary law, only noting
at the very end of its discussion that the letter’s “exclusion does not in the context of
this case seem prejudicial.” Brown, 998 S.W.2d at 550. It seems, then, that the
federal constitutional question was not fully “adjudicated on the merits in state court
proceedings.” 28 U.S.C. §2254(d). In these circumstances, it seems appropriate that
we not apply the standards of §2254 as amended by AEDPA, because there is no
apparent state-court adjudication to which to apply them. See Robinson v. Crist, 278
F.3d 862, 865 (8th Cir. 2002) (“because this claim apparently was not adjudicated by
the [state] court, we likely should apply the pre-AEDPA standard of review.”).
Indeed, the District Court considered the constitutional question on the merits.

We understand Mr. Brown’s claim as relying upon both the Eighth Amendment
and the Due Process Clause of the Fourteenth Amendment. In Lockett v. Ohio and
later cases, the Supreme Court established that the Eighth Amendment guarantees a
capital defendant the right to introduce all relevant mitigating evidence in the penalty
phase. Thus, the Court noted that “the Eighth and Fourteenth Amendments require
that the sentencer, in all but the rarest kind of capital case, not be precluded from
considering, as a mitigating factor, any aspect of a defendant’s character or record
and any of the circumstances of the offense that the defendant proffers as a basis for
a sentence less than death.” Lockett, 438 U.S. 586, 604 (1978) (plurality opinion)

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(emphasis in original); see also Eddings v. Oklahoma, 455 U.S. 104, 110 (1982). The
Supreme Court has also held that the Due Process Clause requires that a state’s rules
of evidence not be applied mechanically when doing so would preclude the defendant
from introducing highly relevant evidence at the penalty phase. Thus, the exclusion
of hearsay testimony at the penalty phase of a death-penalty case violates the Due
Process Clause of the Fourteenth Amendment where “[t]he excluded testimony was
highly relevant to a critical issue in the punishment phase of the trial, and substantial
reasons existed to assume its reliability.” Green v. Georgia, 442 U.S. 95, 97 (1979)
(citations omitted) (per curiam).

In Mr. Brown’s case there was no reason to doubt the reliability of the letter
from his brother. The letter’s return address was to “SFC Darius Q. Turner, HLM
801st MAINT BN, 101st ABN DIV (AASLT), APO NY 09309.” The letter’s
postmark indicates that it was sent from the United States Army. Indeed, the trial
judge did not doubt the letter’s authenticity: “I have no problem with the authenticity
of it except that it’s just not admissible even if this was an affidavit.” Tr. 2443.
Because “substantial reasons existed to assume [the letter’s] reliability,” Green, 442
U.S. at 97, due process required its admission if it was highly relevant to a critical
issue. In our estimation, the letter was highly relevant, as it cast Mr. Brown in a
positive light and attested to his continued importance to his brother, who was an
active-duty Army sergeant. Was exclusion of the letter sufficiently prejudicial to
warrant vacation of Mr. Brown’s sentence? We think the answer is yes. Mr. Brown’s
claim relies upon both the generalized or undifferentiated Due Process Clause and the
Eighth Amendment. Both the Supreme Court and this Court have held that a Lockett
claim is reversible error unless the error can be said to be “harmless.” See, e.g.,
Hitchcock v. Dugger, 481 U.S. 393, 399 (1987); Skipper v. South Carolina, 476 U.S.
1, 7-8 (1986); Sweet v. Delo, 125 F.3d 1144, 1158 (8th Cir. 1997).

The exclusion of Mr. Turner’s letter was not harmless. The critical issue in the
penalty phase of Mr. Brown’s trial was his character. The evidence presented by the

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State of Missouri was aimed at convincing the jury that petitioner was a bad person.
Petitioner’s attorneys, on the other hand, attempted to prove that although he had
committed bad acts, he was a man whose life was worth saving. Mr. Turner’s letter
seems highly relevant in itself, and it would have been even more compelling than the
other mitigation evidence because of its source — a member of the armed services on
active duty in time of war. Mr. Turner’s status as a soldier would have been
especially forceful in this case because the trial judge had repeatedly lauded the
soldiers serving in the Middle East. The judge had at various times said all of the
following to the jury:

There is nothing more important than . . . what our fellows and ladies are
doing over in the Gulf right now, fighting for this country.

* * *

I suppose that there is only one type of service that a citizen can render
to his government or to society above jury duty is that which is now
being enacted in the Gulf area, war, that’s the highest duty that a citizen
owes to his country.

* * *

It’s a vital service that you perform. Only one transcends it, only one is
greater than that and that’s what’s happening over there in the Gulf.
Serving your country in times of conflict and things of that nature is the
only service a citizen can perform that is greater than serving on jury
duty.

* * *

When you stop to consider that we have a lot of men in the Gulf area
that I suppose if they had their druthers they would rather not be there
and the sacrifices they’re making, ours pales very, very badly in
comparison.

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 * * *

Ladies and gentlemen of the jury, I know we will all keep our troops in
the Persian Gulf in mind when we say our prayers.

Tr. at 875, 996, 1144, 1632, and 1642. These tributes would have made the plea for
mercy from Mr. Brown’s brother resonate forcefully with the jury. If there is any
doubt that the exclusion of the letter would have prejudiced Mr. Brown in a normal
case, the trial judge’s repeated references to the importance of the service of the
troops remove that doubt from our minds. We hold that the exclusion of Mr. Turner’s
letter violated Mr. Brown’s rights under the Eighth and Fourteenth Amendments and
that the exclusion was not harmless.

Having concluded that petitioner’s murder trial was fatally flawed in the
penalty phase, we reverse the order of the District Court and grant the writ of habeas
corpus, requiring the State to reduce the penalty to life in prison, or to retry the issue
of life or death. We leave the conviction undisturbed.

It is so ordered.

BOWMAN, Circuit Judge, dissenting.

I concur in the judgment of the Court insofar as it affirms the District Court's
rejection of Brown's various claims for habeas relief. I respectfully dissent from that
part of the judgment reversing the District Court on Brown's ground 12 and
remanding for resentencing.

I agree with the Court that AEDPA deference to the state-court decision is not
appropriate here, as the state court did not address the merits of the constitutional
question. On the other hand, "it is not the province of a federal habeas court to

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reexamine state-court determinations on state-law questions." Estelle v. McGuire,
502 U.S. 62, 67–68 (1991). To the extent Brown's argument attacks the Missouri
courts' application of its own rules of evidence, it is not cognizable in federal habeas.
See 28 U.S.C. § 2253(c)(2) (2000) ("A certificate of appealability may issue . . . only
if the applicant has made a substantial showing of the denial of a constitutional
right."). The only issue properly before the federal habeas courts is Brown's claim
that his Sixth, Eighth, and Fourteenth Amendment rights under the Constitution were
violated by the exclusion of the letter from his brother, Sergeant Darius Turner, as
evidence in mitigation at the sentencing phase of the trial.8

Initially, I note that the Court places what I consider to be undue emphasis on
the trial judge's comments to the jury regarding the then-ongoing Gulf War and the
contemporaneous service of U.S. troops in that war. As later revealed by the letter
in question, Turner was stationed in Saudi Arabia during the Gulf War. It appears
that the Court is suggesting that the jury would have found mitigating circumstances
in Turner's service to his country in the Gulf War, i.e., in deeds of Turner that have
no relevance to Brown, his crime, his character, or his relationship with Turner. That
is not proper mitigation evidence.

The trial court's evidentiary ruling regarding the Turner letter could be a
violation of Brown's due-process rights, such that the writ must issue, only if it

8
Throughout Brown's brief, counsel is wont to allege violations of all manner
of constitutional amendments, usually the Sixth, Eighth, and Fourteenth—often
invoking "due process" and "equal protection" for good measure—regardless of their
applicability to the issue raised. Preparing briefs for § 2254 review of capital cases
is often complex, and counsel's continuing representation of habeas petitioners facing
execution is of great assistance to the Court. I would suggest, however, that more
focused arguments, identifying with specificity the constitutional issues in play,
would better serve his clients. Further, I believe that counsel's disparaging rhetoric
directed at the state courts, at Brown's previous counsel, and at counsel for the State
goes beyond the proper bounds of zealous advocacy.

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resulted in error that was "gross, conspicuously prejudicial or of such import that the
trial was fatally infected." Griffin v. Delo, 33 F.3d 895, 904 (8th Cir. 1994) (quoting
Rhodes v. Foster, 682 F.2d 711, 714 (8th Cir. 1982)), cert. denied, 514 U.S. 1119
(1995). I conclude that Brown has not made the case for the necessary prejudice.
While "substantial reasons existed to assume [the letter's] reliability," I do not think
"[t]he excluded evidence was highly relevant to a critical issue in the punishment
phase of the trial." Green v. Georgia, 442 U.S. 95, 97 (1979) (per curiam). That is
to say, having studied the record in this case, I must conclude that Brown cannot
show that the letter, had it been admitted into evidence, would have changed the jury's
decision to impose the death penalty. There was, in fact, other mitigating character
evidence before the jury, and, even more relevant here, there was devastating
evidence of aggravating circumstances. Even if "harmless error" be the governing
standard, the exclusion of the Turner letter was harmless beyond a reasonable doubt.

The jury was instructed on four aggravating circumstances, two statutory and
two nonstatutory. The first factor that the jury considered was whether Brown was
convicted in 1973 in Indiana on a charge of assault and battery with intent to gratify
sexual desires. In fact, the indictment on the charge, read into evidence during the
sentencing portion of Brown's trial, accused Brown of fondling and caressing the
body of a twelve-year old girl to gratify his own sexual desires. Trial Transcript at
2298. Brown pleaded guilty to the charge.

Next, the jury was instructed to consider whether Brown's murder of Synetta
Ford "involved torture and depravity of mind and whether, as a result thereof, the
murder was outrageously and wantonly vile, horrible, and inhuman." State v. Brown,
Cause No. 861-03056, Legal File Components of the Record on Appeal at 86 (Mo.
S. Ct.). The jury could find depravity of mind only if it found that Brown "committed
repeated and excessive acts of physical abuse upon Synetta Ford and the killing was
therefore unreasonably brutal." Id. The evidence before the jury was that nineteen-
year-old Synetta Ford was found dead in her basement apartment with a knife sticking

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out of her throat and the electrical cord from a curling iron "tightly knotted around
the neck." Trial Transcript at 2043, see also id. 1662, 1684. The door to her
apartment had been forced open. The evidence showed that Brown first strangled her,
taking the time to knot the electrical cord around her neck, and then as she was dying
he stabbed her in the chest and neck. The stab wound to her neck severed her carotid
artery, the major artery in the neck. The jurors saw photographs of Ford's body taken
as it appeared when it was discovered on the floor of her apartment and also an
autopsy photograph. In addition, the jury watched a videotape of Brown's confession,
where he claimed that Ford had accidentally stabbed herself before and after he
strangled her with the cord.

The jury was further charged with deciding whether Brown was convicted of
first degree murder in 1988. During sentencing, jurors heard evidence that in October
1986 Brown took nine-year-old Janet Perkins, who was at his home playing with his
stepsons, into the basement where he wrapped a cord around her neck and strangled
her. The boys heard her screaming as they played upstairs. The body was found near
a trash dumpster, wrapped in trash bags, with a rusty coat hanger wrapped around her
ankles and one of her arms, so that her knees were drawn up to her body. After
Brown was picked up in connection with the Perkins murder, and confessed his guilt,
he led officers to another dumpster a block from where the body was found. There
they found a bag containing Janet Perkins's missing shoe, a yellow plastic raincoat,
and some of her school papers. The Ford jury also saw photographs of the little girl's
body and watched Brown's videotaped confession to the Perkins murder. Brown was
convicted of first degree murder in the Perkins case and sentenced to death.

Finally, the jury was instructed to decide whether Brown committed acts of
sodomy on his stepsons Christopher Moore, Jason Moore, and Tommy Johnson, who
were about seven, five, and nine years old, respectively, at the time of the abuse to
which they testified. Christopher, age eleven at the time of the sentencing, testified
that before Brown was arrested for the Perkins murder in October 1986, he would

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take Christopher alone into the bedroom Brown shared with Christopher's mother and
tell him to undress and lie on his stomach on the bed. Brown would undress, put
"hair grease" on his penis, and put his penis in Christopher's anus and then in his
mouth. Id. at 2262. Brown committed these acts of sodomy on several different
occasions. Christopher told no one about the incidents until Brown was in jail
because Brown had said that if he told, he "would never see any of [his] brothers or
[his] mother again." Id. at 2264. Jason, nine years old when he testified, also
explained to the jury how Brown had performed anal sex on him and said that Brown
had threatened to "kill us" if he told anyone. Id. at 2288. Thirteen-year-old Tommy
Johnson testified that Brown put his penis in Tommy's anus and mouth and that
Brown also put his mouth on Tommy's penis. Id. at 2323. The boys said that Brown
would commit the acts of sodomy when their mother was not at home, taking them
one at a time from playing with their brothers and locking the door so that the boys
who were not being victimized at the time could not come in.

The jury found all four aggravating circumstances, unanimously, beyond a
reasonable doubt.

In light of this damning evidence, I cannot see how a letter expressing brotherly
affection rooted in a childhood memory would have changed the jury's decision to
impose the death penalty upon Brown. I would affirm the judgment of the District
Court denying the writ on all claims.
______________________________

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