Andre Cole v. Donald Roper

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 09-1213
___________

Andre Cole, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Donald P. Roper; *
Jeremiah W. Nixon, *
*
Appellees. *
___________

Submitted: April 12, 2010
Filed: November 5, 2010 (Corrected 11/9/2010)
___________

Before BYE, BEAM, and GRUENDER, Circuit Judges.
___________

BEAM, Circuit Judge.

Andre Cole appeals the district court's denial of his 28 U.S.C. § 2254 petition
for habeas corpus. The district court1 certified nine claims for appeal, and upon
review of these claims, we affirm the denial of relief.

1
The Honorable Catherine D. Perry, Chief Judge, United States District Court
for the Eastern District of Missouri.
I. BACKGROUND

The evidence at Cole's trial in Missouri state court in 2001 reveals that Cole and
his wife, Terri, divorced in 1995 after eleven years of marriage. Cole was ordered to
pay child support for the care of the couple's two children, but his periodic failure to
make payments resulted in an arrearage of nearly $3,000. The record indicates that
Cole and Terri also had disputes involving visitation with the children, and in August
1998, Cole was upset about his alleged lack of visitation with his two sons. There is
also evidence he was upset about his wages being garnished to cover the child support
arrearage. On the evening of August 21, 1998, Cole forced his way into Terri's house
by throwing a tire iron2 through a glass door leading to the dining room from the patio.
Anthony Curtis, who was visiting Terri, confronted Cole and asked him to leave. Cole
stabbed and slashed Curtis more than twenty times, the fatal blow being an eight-inch
deep knife wound to Curtis's back. Cole then assaulted Terri, stabbing her repeatedly
in the stomach, breasts, back, arms, and her hands when she attempted to defend
herself. Terri survived and testified at trial. After the attack, Cole fled the state but
after a little over a month, returned to St. Louis and surrendered to the police. DNA
analysis confirmed the presence of both victims' blood on the knife and the presence
of Cole's blood on the deck of Terri's home, the backyard fence, and in the street
where Cole's car had been parked. At trial, Cole presented the theory that, although
he did break into Terri's home with the jack, he did not bring a weapon, and actually
was attacked by a knife-wielding Curtis, who was much larger than Cole. Cole's
testimony at trial also insinuated that Terri delivered the fatal wounds to Curtis in an
attempt to keep Curtis from attacking Cole.

A jury in St. Louis County, Missouri, convicted Cole of first-degree murder,
first-degree assault, first-degree burglary, and two counts of armed criminal action.

2
This object was variously referred to as either a "jack" or a "tire iron" or a
"wrench" during trial. At one point a police detective described it as a "scissor jack."

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He was sentenced to death for Curtis's murder and given three life terms of
imprisonment for the assault and armed criminal action and thirty years for the
burglary. The Missouri Supreme Court upheld Cole's convictions and sentences on
direct appeal. State v. Cole, 71 S.W.3d 163 (Mo. 2002) (Cole I). Cole's Rule 29.15
motion for postconviction relief, in which he raised numerous claims of ineffective
assistance of counsel, was also denied by the trial court, and the denial was affirmed
on appeal. Cole v. State, 152 S.W.3d 267 (Mo. 2004) (Cole II).

In his timely petition for habeas corpus relief, Cole raised numerous claims.
The district court denied the petition, without an evidentiary hearing, and the
following claims are certified for appeal: (1) a Batson claim regarding black
veniremember Vernard Chambers, who was struck by the prosecution (Claim 4); (2)
claims for ineffective assistance of counsel based on counsel's failure to investigate
Cole's social and medical history, specifically on the days leading up to the crime
(Claims 10 and 11); (3) a claim for ineffective assistance of counsel based upon
counsel's failure to present evidence during the penalty phase about Cole's exemplary
prison conduct while awaiting trial (Claim 12); (4) due process claims based upon
Cole's allegedly visible leg restraint during the guilt and penalty phase trials (Claims
7 and 16); (5) claims for prosecutorial misconduct during closing argument in both the
guilt and penalty phase (Claims 2 and 13); and (6) the cumulative effect of the
foregoing errors (Claim 20).

II. DISCUSSION

In this habeas corpus action, we review the district court's conclusions of law
de novo and its factual findings for clear error. McGehee v. Norris, 588 F.3d 1185,
1193 (8th Cir. 2009). Under the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), we may not grant relief for claims adjudicated on the merits by the
Missouri state courts unless the adjudication was contrary to, or involved an
unreasonable application of, federal law as determined by the Supreme Court, or was

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an unreasonable determination of the facts in light of the evidence presented in state
court. 28 U.S.C. § 2254(d). A state court decision may be incorrect, yet still not
unreasonable, and we will grant relief only if the state court decision is both incorrect
and unreasonable. McGehee, 588 F.3d at 1193. Further, "a determination of a factual
issue made by a State court shall be presumed to be correct" in a federal habeas
proceeding. 28 U.S.C. § 2254(e)(1).

A. Claim 4: Striking of Veniremember Chambers

Cole argues that the prosecutor's use of a peremptory challenge to strike
veniremember Chambers from the jury violated Batson v. Kentucky, 476 U.S. 79
(1986). During Cole's trial, after defense counsel made the Batson challenge to the
strike of veniremember Chambers, the prosecutor offered the following reasons for
why the strike was race-neutral:

[t]he State's primary concern with Mr. Chambers is that he is divorced.
And because of the facts and the dynamics of [sic] case–the record
should reflect the State expects that the evidence that's introduced will
show that Mr. Cole was divorced from his wife Terri Cole. There was a
great deal of animosity between the two of them. I'm concerned that
someone who is similarly situated to Mr. Cole in that he's divorced may
be sympathetic to Mr. Cole and may not be sympathetic to Terri Cole,
the victim in this case. . . . In addition to that, Your Honor, with regard
to the death penalty he stated that he was not opposed to the death
penalty, but not sure if he could do it or not. Furthermore, he has a
cousin doing life in prison for a murder in Michigan.

Trial Transcript (Tr.) at 569-70. Defense counsel responded that there was a white
male paying child support and a different white male who was never married, neither
of whom was struck by the state. She also generally objected to Chambers being

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struck on the basis of his divorced status.3 The trial court summarily found the state's
reasons race-neutral and denied the defense's Batson challenge.

The Missouri Supreme Court adjudicated this claim on the merits and found
that the prosecutor's reasons were race-neutral, not pretextual and noted that the
"similarly situated" jurors proposed by the defense were not actually divorced, but one
was simply subject to a child support order, though not married. The court concluded
that these comparison jurors were not similarly situated and that Chambers' status as
divorced, his somewhat equivocal answers about the death penalty, and having a
cousin with a murder conviction were all reasons for the prosecution's use of the strike
that did not violate Batson. Cole I, 71 S.W.3d at 173.

In Batson, the Court held that the Equal Protection Clause of the United States
Constitution prohibits the use of peremptory challenges to exclude jurors on the basis
of race. Batson, 476 U.S. at 89. The Court uses a three-step process for evaluating
whether the use of a peremptory challenge was based on purposeful discrimination.
First, the defendant must make a prima facie case of racial discrimination. Second,
after such showing is made, the state must suggest a race-neutral explanation for the
use of the strike. Third, after a race-neutral reason is offered, the trial court must
decide whether the defendant has shown purposeful discrimination. Snyder v.
Louisiana, 552 U.S. 472, 476-77 (2008). Within this framework, the defendant may
rely on "all of the circumstances that bear upon the issue of racial animosity" to show
purposeful discrimination. Id. at 478. Whether a peremptory strike was motivated by
race is ultimately a question of fact, Miller-El v. Dretke, 545 U.S. 231, 240 (2005),
and a state court finding is accorded a presumption of correctness under AEDPA, 28

3
Though not pressed by Cole's counsel during voir dire, on direct appeal he
alleged that a white venireperson not struck by the prosecution, Shirley Parsons, was
similarly situated to Chambers because she had a nephew serving time in prison for
manslaughter. The Missouri Supreme Court found that Parsons and Chambers were
not similarly situated. Cole I, 71 S.W.3d at 173.

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U.S.C. § 2254(e)(1). Thus, a Missouri state court's determination regarding the
prosecution's intent may be set aside only if Cole rebuts "the presumption of
correctness by clear and convincing evidence." Id.

Cole complains that the trial court did not make proper findings or do an
adequate Batson evaluation by simply saying the reasons were race-neutral without
saying they were "true." His argument, as we understand it, is essentially that the trial
court did not complete step three of the Batson analysis. He also argues that the state
court adjudications violate the recent Supreme Court pronouncements in Snyder.
While the trial court's Batson analysis may have been lacking, in addition to
considering (and giving deference to) the trial court's Batson's findings, we also must
consider the Missouri Supreme Court's analysis. Smulls v. Roper, 535 F.3d 853, 862
(8th Cir. 2008), cert. denied, 129 S. Ct. 1905 (2009).

We find that the Missouri Supreme Court's analysis of Cole's Batson claim was
not contrary to, nor an unreasonable application of, Supreme Court precedent. Its
factual findings regarding the three proffered similarly situated jurors are accorded a
presumption of correctness. As is the Missouri Supreme Court's finding that, given
the marital status issue, Chambers' equivocation about the death penalty, and having
a cousin serving time for a murder conviction, the prosecutor's reasons for striking
Chambers were not race-based. Cole's arguments to the contrary, while well-
presented, are not clear and convincing evidence that entitles him to overcome these
presumptively correct findings.

Furthermore, Cole cannot argue that the trial court or the Missouri Supreme
Court unreasonably applied either Miller-El or Snyder, because neither had been
decided at the time the state courts adjudicated his Batson issue. See Thaler v.
Haynes, 130 S. Ct. 1171, 1174 n.2 (2010) (per curiam). To the extent Cole simply
argues that Snyder and Miller-El are factually and legally persuasive reasons why
Batson was unreasonably applied in this case, we disagree. In Snyder, the petitioner
challenged the strike of two black jurors during his state court prosecution for capital
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murder. The prosecutor's reasons for striking the first juror were that he looked
"nervous" during voir dire and that his school and work obligations were arduous
because he was a student teacher. The trial court allowed the strike without
discussion. In reversing the denial of habeas corpus relief, the Court refused to
presume that the trial court credited the prosecutor's representation that he struck the
challenged juror based on the juror's demeanor because the trial court had made no
factual findings concerning the demeanor. 552 U.S. at 479.

In Miller-El, prosecutors "shuffled" the jury at least twice and offered no
explanation to rebut the defendant's evidence that this was done to limit the number
of black persons on the jury. 545 U.S. at 265. Ten of the eleven qualified black
persons were peremptorily struck; two of those who were allegedly struck for being
hesitant about applying the death penalty actually gave answers that an unbiased
prosecutor seeking the death penalty would have readily accepted. Id. Most of the
blacks were subject to questions and scripts designed to elicit answers that non-blacks
generally were not. Id. at 265-66. The egregious facts present in Miller-El were not
present during Cole's trial. We have no evidence that there was jury shuffling, and a
review of the record indicates that no different forms of questioning were posed to the
black and non-black members of the jury pool. Snyder involved a demeanor-based
challenge, which was not at issue in this case. There was no unreasonable application
of Batson by the Missouri state courts, and neither Miller-El nor Snyder changes that
result. The district court properly denied relief based upon this claim.

B. Claims 10 and 11: Ineffective Assistance of Counsel: Failure to
Investigate Cole's Mental and Emotional Disturbance

In Claim 10, Cole argues that trial counsel failed to investigate and present
evidence that he suffered from an extreme mental and emotional disturbance at the
time of the crime. In Claim 11, Cole relatedly argues that counsel erred by failing to
investigate and present evidence from lay witnesses on his troubled state of mind
around the time of the offense.
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 A claim of ineffective assistance of counsel is governed by the performance and
prejudice standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under
the performance prong, the court must apply an objective standard and "determine
whether, in light of all the circumstances, the identified acts or omissions were outside
the wide range of professionally competent assistance," id. at 690, while at the same
time refraining from engaging in hindsight or second-guessing of trial counsel's
strategic decisions. Id. at 689. If performance was deficient, the prejudice prong
requires proof "that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." Id. at
694.

Although Cole had undergone two pretrial psychiatric evaluations by mental
health experts, he argues that counsel should have had him evaluated by a third expert
to develop mitigation evidence for the penalty phase. At Cole's state postconviction
hearing a forensic psychiatrist opined that Cole was suffering from an "extreme
emotional distress" at the time of the offense.

The Missouri Supreme Court adjudicated this claim on the merits and found
that counsel was not deficient because both pretrial experts who examined Cole
concluded that he was not suffering from any mental disease or defect at the time of
the crime. There was no evidence that Cole was suffering from depression, paranoia
or delusional beliefs. His thought processes were found to be logical and sequential,
and he was determined to be capable of knowing and appreciating the nature, quality
and wrongfulness of his conduct. Accordingly, the court found that counsel was not
deficient for failing to shop for a more favorable expert. Cole II, 152 S.W.3d at 270.
Further, the court found that lay witness testimony may have been more harmful than
helpful. Id.

This adjudication was not an unreasonable application of, nor was it contrary
to, Strickland. Cole's trial counsel testified at the postconviction hearing about the
avenues she investigated concerning Cole's background. She met with Cole's mother
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and sister routinely and questioned them about medical conditions, a family history
of mental illness or alcohol abuse, and Cole's use of alcohol and drugs. Cole informed
her that he had not been treated for mental disease or defect and denied that he was
depressed. He admitted to drinking two beers on the night of the crime but he denied
being drunk or on any drugs at the time of the offense, and he denied having an
alcohol problem. This was enough of an investigation to clear Strickland's
performance prong. See, e.g., Forsyth v. Ault, 537 F.3d 887, 892 (8th Cir. 2008)
(holding that the Sixth Amendment does not require favorable expert "shopping" for
adequate performance), cert. denied, Forsyth v. Burt, 129 S. Ct. 1044 (2009). And
with the strong expert testimony already in the hands of the state at the time of trial,
it is unlikely that Cole suffered any prejudice from the failure to call more favorable
expert or lay witnesses, even if performance was lacking. See id. (noting that, given
the weight of psychiatric opinion on petitioner's competence, the proffered
postconviction expert's opinion was unlikely to have had an effect on the outcome of
the proceeding). The district court did not err in rejecting these two points.

C. Claim 12: Ineffective Assistance of Counsel: Failing to Investigate
and Present Evidence Regarding Cole's Exemplary Prison Conduct

Cole argues that his trial counsel performed deficiently during the penalty phase
by failing to investigate and present evidence of Cole's good prison conduct. The
Missouri Supreme Court rejected this claim, citing trial counsel's testimony at the Rule
29.15 motion hearing that "her experience with presenting evidence on a defendant's
good behavior in jail was generally ineffective," and by stating that the testimony of
jail witnesses would have overlapped other good character evidence that was
presented at the sentencing. Cole II, 152 S.W.3d at 269-70.

The three witnesses Cole argues should have been investigated and presented
by his counsel were two jail employees, and a nun who ran the jail religious services,
Sister Judith Klump. One prison employee allegedly would have testified that Cole
was an ideal inmate who followed rules, was mild mannered, and an excellent worker.

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The other apparently would have testified that Cole was an exceptional worker with
no discipline problems. Sister Klump met Cole through the religious classes that she
taught at the jail. She now claims she would have testified that she often asked Cole
to start her class with a prayer because he spoke from the heart, and that Cole was a
polite class leader who was respected among the inmates.

The Missouri Supreme Court's opinion rejecting this claim was not contrary to,
nor an unreasonable application of, Strickland. We may not second-guess counsel's
reasonable strategic decisions. Strickland, 466 U.S. at 690 (describing informed
strategic choices as "virtually unchallengeable"). And counsel did, in fact, put on
good character evidence during the penalty phase of Cole's trial, including Cole's
family members, friends, and his church pastor. At the postconviction hearing,
counsel testified that she interviewed correctional officers at the jail but learned of no
potentially relevant testimony. Counsel admitted that she did not investigate any
potential witnesses regarding Cole's attendance at religious services and Bible study
groups while he was incarcerated and that she was unaware he attended such services
in jail. Counsel's primary concern was that Cole had a prior conviction for failure to
return to confinement, and that might be a negative issue if she put jail employees on
the stand. She felt that a reminder of the prior conviction would outweigh any good
character evidence a jail employee could provide.

Cole argues the Missouri court's adjudication of this issue was contrary to or
an unreasonable application of Skipper v. South Carolina, 476 U.S. 1 (1986). In
Skipper, the Court held that evidence of a "defendant's disposition to make a
well-behaved and peaceful adjustment to life in prison" is relevant mitigating
evidence. Id. at 7. However, while Skipper held that such evidence is relevant and
admissible, the failure to put on this evidence does not make counsel's performance
deficient. And under our doubly deferential standard of review, it does not mean that
the Missouri Supreme Court unreasonably applied Strickland. The district court did
not err in denying this point.

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 D. Claims 7 and 16: Visible Restraint

Cole asserts that the leg brace restraint he was required to wear during his trial
was visible to the jurors and that this violated his due process rights, as stated in Deck
v. Missouri, 544 U.S. 622, 630-32 (2005) (holding that visibly shackling a defendant
during the penalty phase of a capital trial without a justifiable state interest violates
due process). Claim 7 pertains to the effect of the restraint on the guilt phase of the
trial and Claim 16 pertains to its effect on the sentencing phase. The state argues that
Cole has defaulted these claims because they were not raised in either his direct appeal
or his postconviction motion, but that even if not defaulted, Cole's claims would fail
because the leg restraint was not visible and thereby did not violate Deck. Cole argues
that these claims are not procedurally defaulted because he raised them in a motion
to recall the mandate, shortly after Deck was decided, and that the claim was raised
as soon as possible under Deck. The district court agreed that the Deck claim was not
procedurally defaulted because it was raised in the motion to recall the mandate.
Cole's 29.15 motion was denied in November 2004, and Deck was decided by the
Supreme Court in May 2005. Cole filed his motion to recall the mandate based upon
Deck in August 2005, and the Missouri Supreme Court summarily denied this motion
later in August 2005.

As noted, Claim 16 involves the restraint during penalty phase issue, and the
basis for this claim would not have been available before Deck was decided. But
Claim 7 is based upon unjustified restraint during the guilt phase, which has been
unconstitutional since 1986 when the Supreme Court decided Holbrook v. Flynn, 475
U.S. 560, 567-68 (1986). Cole failed to preserve this claim for review by the state
courts, and advances no arguments with regard to cause for or prejudice from the
procedural default of this claim. Accordingly, Claim 7 is defaulted. Claim 16 is not

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defaulted, however, because Cole raised the issue to the state courts as soon as the
claim became legally viable (following Deck) in a motion to recall the mandate.4

The district court treated Claim 16 as though it had been adjudicated on the
merits by the Missouri Supreme Court's summary denial of the motion to recall the
mandate, accorded the decision AEDPA deference, and found that there was no
unreasonable application of Deck because the restraint here–a knee immobilizer worn
under Cole's pants–was far less visible and obtrusive than those employed in Deck.
Cole alleges that the restraint (even though worn under his pants) was visible from the
bottom of his pants. He also submitted statements from a juror who "remembered"
that Cole was shackled, and another from a juror who thought Cole was handcuffed
during trial (which he clearly was not), as well as from family members who opined
that the restraint was visible during trial. The district court refused to grant an
evidentiary hearing on the issue, dismissed the credibility of the juror statements as
the product of faulty memory, and denied the claim.

Cole asserts that at the very least, he was entitled to an evidentiary hearing on
this claim. We review the district court's decision denying an evidentiary hearing for
an abuse of discretion. Osborne v. Purkett, 411 F.3d 911, 915 (8th Cir. 2005). The
AEDPA dictates that an evidentiary hearing may only be held in extremely limited

4
The State of Missouri has previously allowed a defendant to bring a motion to
recall the mandate to raise a new constitutional claim. In State v. Whitfield, 107
S.W.3d 253, 265, 268 (Mo. 2003), the Missouri Supreme Court allowed a defendant
to bring a new claim in a motion to recall the mandate when his capital sentencing
violated the Sixth Amendment principles announced in Ring v. Arizona, 536 U.S. 584,
609 (2002). The Whitfield defendant's 29.15 motion had been finally decided prior
to Ring, and following Whitfield's motion, the court recalled its mandate and imposed
a life sentence. 107 S.W.3d at 270-72. Further, in Nave v. Delo, 62 F.3d 1024, 1032
(8th Cir. 1995), we recognized that in Missouri, a motion to recall the mandate may
be employed when a decision of a lower court "is contradicted by subsequent
developments in the law."

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circumstances when the factual basis for a claim was not developed in state court. 28
U.S.C. § 2254(e)(2). However, an evidentiary hearing may also be held when the
claim is based upon a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court. Id. § 2254(e)(2)(A).

While Cole arguably relies upon a "new rule of constitutional law" as set forth
in Deck, the Supreme Court has not made Deck retroactive to cases on collateral
review. Deck itself was a direct appeal from a Missouri conviction. We can find no
Supreme Court case making Deck retrospective. Cf. In re Rutherford, 437 F.3d 1125,
1128 (11th Cir. 2006) (holding that Deck is not retroactive for purposes of § 2244's
general prohibition on successive habeas corpus petitions). Accordingly, because
Cole's claim is not based upon a new retroactive constitutional rule, the district court
did not abuse its discretion in refusing to hold an evidentiary hearing on this claim.

Nor did the district court err in refusing to grant relief on the merits of this
claim. Deck cannot be the basis for a Missouri court violation of clearly established
Supreme Court precedent because it was not decided until after Cole's conviction
became final. See Williams v. Norris, 612 F.3d 941, 958 (8th Cir. 2010) ("Williams
cannot claim any relief from Deck, because Deck post-dated his trial and the
principles articulated therein were not clearly established at that time."). And even
considering the merits, our review of the record indicates that Cole was not
unconstitutionally shackled within the meaning of Deck. The record indicates that
Cole's counsel was not even aware that Cole was restrained, as she thought he was
wearing a knee brace because his knee was bothering him. In that regard, the
following discussion took place on the record, out of the presence of the jury:

[Cole's Counsel]: This morning, Your Honor, January 15th, I had asked
the Court to consider having Mr. Cole's brace taken off of his–either I
think it's [sic] left leg. I'm not sure. He had it on last week. And I
misunderstood what he was saying. I thought he was [sic] said he was
wearing it because his knee was bothering him so I didn't bring this to

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 the Court's attention before I asked the Court this morning and you asked
the Department of Justice Services the reason for that.

[Court]: They basically said it was their administrative policy on death
penalty cases to implement the leg brace or install the leg brace on the
Defendant in these kind of cases where he's in custody. So, if I believe
that it may affect his ability in this case to effectively assist his attorney
in this case, then I will reconsider that.

[Counsel]: I don't think it will. I think it's uncomfortable. My thought
was at first it was because he had to have it on.

Tr. at 1188. Defense counsel and the trial judge spoke further about the fact
that Cole was not too uncomfortable to assist in his own defense, and counsel also
requested, and was promised, a recess before Cole testified so that the jury would not
see him uncomfortably walking to the witness stand. The record reflects that when
the jury was brought in for Cole's testimony, he was already seated at the witness
stand.

Considering that his own attorney was unaware that Cole was restrained, it is
extremely unlikely that the jury was aware of it. Deck proscribes the routine use of
"visible shackles" during the penalty phase of a capital trial. 544 U.S. at 632.
Because Cole was not subject to "visible shackles," the district court properly denied
relief on Claim 16.

E. Claims 2 and 13: Prosecutorial Misconduct

Cole contends that statements made by the prosecutor in closing argument,
during both the guilt phase (Claim 2) and the penalty phase (Claim 13), were
prejudicial to him and made his trial fundamentally unfair. In the guilt phase
arguments, Cole objects to the prosecutor: personalizing the evidence by saying, "I
can't emphasize enough to you the seriousness of this case nor can I emphasize
enough to you the strength of the State's case;" accusing Cole of sneaking and
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creeping around at night and terrorizing Terri; eviscerating Cole's presumption of
innocence by stating that defendants are usually "sitting in that chair . . . for a reason;"
calling Cole a "convicted killer;" telling the jury that they can send a message "to the
victims of crime, families in St. Louis County, that you can come to the court house
and get justice;" and unfairly appealing to the jury's sympathies by reminding them
that Terri was a "dying woman."5 Tr. at 1415-21, 1474-80. In the penalty phase, Cole
objects to the prosecutor analogizing the jury to "patriots" who needed to step up to
protect society; again reminding jurors that "verdicts do send messages;" and opining
that the "death penalty is a weapon we need to have in our arsenal to fight crime." Tr.
at 1653-54.

None of these statements were objected to by trial counsel. After noting that
none of these claims were preserved for direct appeal by a timely objection at trial, the
Missouri Supreme Court reviewed for plain error and summarily rejected the majority
of Cole's claims. Cole I, 71 S.W.3d at 170. The state court discussed the merits of
only one prosecutorial argument (the "convicted killer" comment), but still found no
error of law. In adjudicating the claim, the court found that the prosecutor had
repeatedly referred to Cole as a "convicted felon" during argument, and found the
"convicted killer" remark to be a single inadvertent remark which did not prejudice
Cole because the jury had already been presented with the precise nature of his actual
prior convictions, none of which involved a homicide. Id. The court also found that
"[s]tatements made in closing argument will rarely amount to plain error." Id. at 171.

Although we agree that the "convicted killer" comment was clearly improper
and several of the other statements were unnecessarily close to the line, the Missouri
Supreme Court's adjudication of this claim was not an unreasonable application of, or

5
At the time of trial, Terri had been diagnosed with amyotrophic lateral sclerosis
(also known as "Lou Gehrig's Disease"), completely unrelated to the incident that
resulted in Curtis's death. The record reflects that the effects of the disease had begun
to physically affect Terri, and the jury was aware of the diagnosis.
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contrary to, clearly established Supreme Court precedent. The watershed Supreme
Court precedent on prosecutorial misconduct is Darden v. Wainwright, 477 U.S. 168
(1986), and under Darden, habeas relief is only appropriate if a prosecutor's improper
closing argument "so infected the trial with unfairness as to make the resulting
conviction a denial of due process." Id. at 181 (quotation omitted). In Darden, the
prosecutor insinuated that if not given the death penalty, the defendant might be
allowed out on work release to kill again, referred to the defendant as an animal who
should be on a leash, and asserted that he wished the defendant's face had been "blown
off." Id. at 180 n.9-12. The Court found that while improper, the comments did not
infect the trial with unfairness sufficient to deny petitioner due process. Id. at 181-83.

The Missouri Supreme Court's conclusion that the prosecutor simply misspoke
in calling Cole a convicted "killer" is a factual finding that we presume to be correct.
28 U.S.C. § 2254(e). Cole cannot rebut this presumption. We agree that because of
the prosecutor's repeated earlier descriptions of Cole as a "convicted felon," the record
supports the conclusion that the use of the word "killer" instead of "felon" in this
instance was inadvertent and not unduly prejudicial. Arguments about Cole sneaking
around and terrorizing were not improper, unless throwing a tire jack through a glass
patio door, conduct admitted by Cole, can somehow not be considered terrorizing.
And while we have previously frowned upon "send a message," see Sublett v.
Dormire, 217 F.3d 598, 601 (8th Cir. 2000), and personalizing arguments, see Kellogg
v. Skon, 176 F.3d 447, 451-52 (8th Cir. 1999), we have also recognized that it will be
exceptionally rare that we grant habeas corpus relief on these bases. Sublett, 217 F.3d
at 601. The "there for a reason" comment was also ill-advised. However, shortly
thereafter, the prosecutor reminded the jury that Cole was entitled to a presumption
of innocence. Furthermore, the prosecutor's comment about Terri being a dying
woman was simply an unfortunate fact, and one which defense counsel acknowledged
in front of the jury before cross-examining her.

Cole argues that the "patriot" statement compares favorably with prosecutorial
argument in Weaver v. Bowersox, 438 F.3d 832, 842 (8th Cir. 2006), wherein we
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affirmed the grant of habeas corpus relief on the basis of improper prosecutorial
closing argument. The Weaver prosecutor used a graphic story from a war movie to
analogize the jurors to soldiers with a duty to kill, and also implored jurors to kill the
defendant as part of the war on drugs. Id. at 836-37. We held that because the
prosecutor used an analogy to soldiers, who "have no choice but to kill" and who
"follow orders when they kill," the prosecutor improperly "eviscerate[d] the concept
of discretion afforded to a jury as required by the Eighth Amendment." Id. at 840.
We found the prosecutor's statements improper because they diminished the jury's
sense of responsibility for imposing the death sentence. Id.

The same cannot be said about the statements made by the prosecutor in this
case. While the prosecutor did call the jurors "patriots," this is not the same as calling
them "soldiers." "Patriot" is a rather generic term defined as "a person who loves,
supports, and defends his or her country and its interests with devotion." Webster's
Unabridged Dictionary 1422 (2d ed. 1997). It does not commonly include a duty to
kill. Nothing in the prosecutor's statements insinuated that the jurors lacked the
discretion to decide whether to impose the death penalty. Analogies to war and to
soldiers are not comparable to the prosecutor's brief reference to the jurors here as
"patriots."

Accordingly, the challenged statements were either not improper, or even if
they were, they were not so inflammatory and prejudicial as to render the trial
fundamentally unfair and constitute a denial of Cole's due process. The evidence at
trial showed, and Cole admits, that he went to Terri's home with a tire iron and broke
a glass patio door to gain entrance to the house. Cole then asked the jury to believe
that Terri delivered the fatal blows to Curtis, her guest, in an effort to keep Curtis
(who was, admittedly, quite large), from hurting Cole. During his testimony, Cole
also insinuated that Curtis administered the knife wounds to Terri. The essence of
Cole's guilt phase trial boiled down to whether jurors believed Terri or Cole. At the
penalty phase, the prosecution presented three aggravating circumstances–that the
murder was committed during the attempted homicide of Terri Cole; that it involved
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depravity of the mind because it was wantonly vile, horrible and inhumane (based
upon the excessive number of knife wounds sustained by Curtis); and that it was
committed during the perpetration of burglary. The jury found the latter two
aggravators beyond a reasonable doubt. When considered in context of the
prosecutor's lengthy closing arguments and the evidence presented at both phases of
trial, there is no reasonable probability that the prosecutor's statements during closing
arguments fatally infected either trial with unfairness or affected the outcome.
Accordingly, the Missouri Supreme Court's denial of this claim was not contrary to,
or an unreasonable application of, Supreme Court precedent.

F. Claim 20: Cumulative Effect of Errors

In Cole's final claim, he alleges that his constitutional rights were violated by
the cumulative effect of the errors asserted in his petition. Our precedent forecloses
this argument, Hall v. Luebbers, 296 F.3d 685, 692-93 (8th Cir. 2002), as Cole
concedes.

III. CONCLUSION

We affirm the judgment of the district court denying habeas corpus relief.

BYE, Circuit Judge, concurring in part and dissenting in part.

I concur in the court's opinion, with the following exceptions. With respect to
Part II. D, I concur in the discussion regarding Claim 7 (guilt phase restraints), but
concur only in the result of the resolution of Claim 16 (penalty phase restraints)
because it appears Claim 16, even if meritorious, is foreclosed by Williams v. Norris,
612 F.3d 941 (8th Cir. 2010). See id. at 958 ("Williams cannot claim any relief from
Deck, because Deck post-dated his trial and the principles articulated therein were not
clearly established at that time."). I respectfully dissent from Part II. C because I
believe Cole's trial counsel was constitutionally ineffective in failing to investigate
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and present evidence regarding Cole's exemplary behavior during his pre-trial
detention.

I

Cole alleges his trial counsel should have called two jail employees, William
Bradford and Romel Cochrel, and a nun, Sister Judith Klump, during the penalty
phase of his trial. Bradford was in charge of the inmates housed on Cole's floor and
would have testified Cole was an ideal inmate who followed rules, was mild
mannered, and an excellent worker. Bradford would have informed the jury as to
Cole being one of the select inmates with a prison job, considered a privilege.

Cochrel, a seasoned jailer, was Cole's housing unit officer and would have
testified as to Cole being an exceptional worker with no discipline problems. "[O]ne
out every 30 to 40 inmates would be the Andre Cole type. And what I mean by that,
you would [ask] somethin' of him once and . . . he would follow through and do what
was [asked] of him. He didn't – he didn't allow himself to get caught up in a lot of jail
house games." Post-Conviction Hearing Transcript at 286.

Sister Klump ran the jail religious services. She would have testified Cole was
an excellent student who knew more than most of the inmates, and that she often
asked Cole to start her Scriptures class with a prayer because Cole spoke from the
heart.

The Missouri Supreme Court rejected this claim, noting Cole's "trial counsel
was a seasoned, death-penalty litigation attorney" who had "tried nineteen capital
murder cases" and who testified that "her experience with presenting evidence on a
defendant's good behavior in jail was generally ineffective." Cole v. State, 152
S.W.3d 267, 269-70 (Mo. 2004). The Missouri Supreme Court did not specifically
address whether trial counsel's investigation into Cole's jailhouse behavior was
adequate, but seemed to have implicitly found it to be adequate. See id. at 269
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(finding trial counsel "contacted the corrections officers where [Cole] was being
confined and investigated [Cole's] behavior while in jail"). The Missouri Supreme
Court also stated its belief that the good jailhouse behavior evidence "essentially
overlapped" with other evidence presented of Cole's good behavior and concluded
trial counsel was "not ineffective for failing to put on cumulative evidence,"
characterizing trial counsel's decision as a "reasonable choice[] of trial strategy." Id.
at 270.

The Missouri Supreme Court's resolution of this issue was unreasonable in two
respects. First, the implicit factual determination as to trial counsel conducting an
adequate investigation into Cole's jailhouse behavior was an "an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d)(2). The post-conviction transcript indicates trial
counsel did not investigate Cole's jailhouse behavior. Second, because trial counsel's
investigation was inadequate, the Missouri Supreme Court's determination that trial
counsel made a reasonable choice of trial strategy is "an unreasonable application of
[] clearly established Federal law, as determined by the Supreme Court of the United
States." 28 U.S.C. § 2254(d)(1). Well-established Supreme Court precedent indicates
there must first be an adequate and thorough investigation before trial counsel's choice
can be considered a reasonable strategy decision.

A. The Failure to Investigate

Trial counsel in a capital case is "obligat[ed] to conduct a thorough
investigation of the defendant's background." Williams v. Taylor, 529 U.S. 362, 396
(2000). A capital defendant's lawyer must make diligent efforts "to discover all
reasonably available mitigating evidence and evidence to rebut any aggravating
evidence that may be introduced by the prosecutor." Wiggins v. Smith, 539 U.S. 510,
524 (2003) (citation omitted). Evidence regarding the exemplary behavior of a capital
defendant during time he spends in pretrial detention awaiting trial is clearly "relevant

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mitigating evidence" which a capital defendant has a "right to place before the
sentencer." Skipper v. South Carolina, 476 U.S. 1, 4 (1986).

The Missouri Supreme Court's implicit decision as to Cole's trial counsel having
adequately investigated his positive jailhouse behavior is unreasonable. I recognize
"[f]indings of fact made by state appellate courts have the same presumptive
correctness as findings of fact made by state trial courts," Weaver v. Bowersox, 241
F.3d 1024, 1031 (8th Cir. 2001), but such presumption is overcome in this case.

The transcript of the post-conviction proceedings establishes that trial counsel
did not investigate Cole's exemplary jailhouse behavior. She never discovered he was
involved in the Scripture class or made any attempt to interview Sister Klump. She
never conversed with Bradford or Cochrel, or even made an attempt to determine who
Cole's housing unit officer was. Instead, her investigation consisted of seeing
correction officers walking around during jailhouse visits with her client. As she
would finish visiting Cole she "would say a few things to people. I can't tell you who
those people were by name." Post-Conviction Transcript at 369. This was the full
extent of the testimony presented at the post-conviction hearing on trial counsel's
purported investigation into Cole's exemplary jailhouse behavior. Saying "things" to
jailhouse staff in passing does not constitute an investigation into Skipper-type
evidence. A trial counsel's casual conversations with jail staff, with nothing more than
an implied suggestion the conversations even related to her client, clearly does satisfy
the stringent investigatory duties required by the Supreme Court in capital cases. The
Missouri Supreme Court's decision to the contrary is unreasonable.

I am not persuaded by the state's reliance on Skillicorn v. Luebbers, 475 F.3d
965 (8th Cir. 2007). Skillicorn rejected a claim that a capital defendant was
prejudiced by his counsel's failure to present Skipper-type evidence of his good
behavior while he was in a drug treatment center and at a county jail awaiting trial,
recognizing Skipper does not necessarily require an attorney to present positive
jailhouse behavior evidence in a capital case. In Skillicorn, however, the defendant's
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attorney actually investigated the defendant's good behavior in jail before deciding the
evidence would not be terribly helpful. 475 F.3d at 975.

As the Supreme Court noted in Strickland, "strategic choices made
after thorough investigation of law and facts relevant to plausible options
are virtually unchallengeable." Strickland [v. Washington], 466 U.S.
[668, 690 (1984)]. On the other hand, strategic choices "resulting from
lack of diligence in preparation and investigation [are] not protected by
the presumption in favor of counsel." Kenley v. Armontrout, 937 F.2d
1298, 1304 (8th Cir.1991); see also Wiggins v. Smith, 539 U.S. 510, 527
(2003) ("Strickland does not establish that a cursory investigation
automatically justifies a tactical decision . . .. Rather, a reviewing court
must consider the reasonableness of the investigation said to support that
strategy." (citing Strickland, 466 U.S. at 691)).

Armstrong v. Kemna, 534 F.3d 857, 864-65 (8th Cir. 2008); see also Sears v. Upton,
130 S.Ct. 3259, 3265 (2010) (reiterating the "plain" point that a failure to present
evidence cannot be justified as a reasonable tactical decision when "counsel did not
fulfill their obligation to conduct a thorough investigation of the defendant's
background." (quoting Williams v. Taylor, 529 U.S. at 396)). The Missouri Supreme
Court therefore unreasonably concluded trial counsel made a reasonable choice of trial
strategy to forego presenting jailhouse evidence, where there is no evidence Cole's
trial counsel actually conducted an investigation, let alone an adequate investigation,
into his positive jailhouse behavior.

B. Prejudice From the Failure to Present the Evidence

In Skipper, the Supreme Court reversed a South Carolina court's decision to
exclude testimony from two jailers and a regular jail visitor regarding the behavior of
a capital defendant during the seven-and-a-half months he spent in pretrial detention
awaiting his trial. Significantly, the Supreme Court specifically distinguished the
testimony of the two jailers and jailhouse visitor from testimony by Skipper himself
and a family member regarding his general good character and adjustment to prison
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life. South Carolina argued the evidence from the jailers was "merely cumulative" of
the evidence offered by the defendant himself and his former wife, and its exclusion
was therefore harmless. 476 U.S. at 8. The Supreme Court rejected that claim,
stating:

The evidence petitioner was allowed to present on the issue of his
conduct in jail [i.e., from himself and a family member] was the sort of
evidence that a jury naturally would tend to discount as self-serving.
The testimony of more disinterested witnesses – and, in particular, of
jailers who would have had no particular reason to be favorably
predisposed toward one of their charges – would quite naturally be given
much greater weight by the jury.

Id.

The Supreme Court also addressed whether the failure to present such evidence
could result in prejudice, stating:

Nor can we confidently conclude that credible evidence that petitioner
was a good prisoner would have had no effect upon the jury's
deliberations. The prosecutor himself, in closing argument, made much
of the dangers petitioner would pose if sentenced to prison, and went so
far as to assert that petitioner could be expected to rape other inmates.
Under these circumstances, it appears reasonably likely that the
exclusion of evidence bearing upon petitioner's behavior in jail (and
hence, upon his likely future behavior in prison) may have affected the
jury's decision to impose the death sentence.

Id.

Similar arguments were made by the prosecutor in this case. The prosecutor
argued Cole had escalated his level of violence from one encounter with his ex-wife
to the next, and thus implied the death penalty was the next step needed to stop the
escalation:
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 When you think about the culmination of things that were done to be fair
to him, for this system to be fair to him – he's given probation, no more
guns, for this one. How does he respond? Ex parte order violation:
Unscrewing the lights to terrorize, to sneak; just like he did in this case.
That explosion through the window to terrorize.

No contact. How does he respond to that in 1995? Along with the guns
we know what he did. He went back into [] that house.

So, the Court escalates things a little. No contact provisions aren't
working. He keeps goin' back. No weapons provisions aren't workin'.
So he gets work release.

Do you know why he gets work release? So he can pay his child
support. And he still is – you know, in this case he still didn't do that.
And then, he gets the jail time. That's the deterrent. Now he's got jail
time. Now he'll abide by the rules.

Well guess what? He didn't.

Trial Transcript at 1635-36.

This argument clearly suggests that a progressively punitive response is
necessary to control Cole's behavior, from probation, to a no-contact order, to work
release, to jail time. The next step implied – the death penalty. In light of this
argument, the failure to present evidence of Cole's exemplary behavior in jail may
have affected the jury's decision to impose the death penalty.

In Williams v. Taylor, the Supreme Court emphasized not only the important
role evidence of good jailhouse behavior plays in a capital case, but also trial counsel's
duty to conduct a thorough investigation regarding all reasonably available mitigating
evidence. The Supreme Court granted habeas relief to a capital defendant based on
his trial counsel's failure to thoroughly investigate and present mitigating evidence,
including evidence of his jailhouse behavior while awaiting trial. The Supreme Court
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noted that trial counsel failed to investigate Williams's prison records, which showed
he broke up a drug distribution ring in the facility, and that prison officials described
him as being among the "least likely to act in a violent, dangerous or provocative
way." 529 U.S. at 396.

Similar to Cole, Williams took part in a prison ministry program. Id. He also
earned a carpentry degree. Id. The Supreme Court held Williams was prejudiced by
his trial counsel's failure to discover and present his correctional history to the jury,
id. at 398, despite the fact there were some negative aspects to his correctional history,
i.e., he "set fire to his cell while awaiting trial for the murder at hand and has repeated
visions of harming other inmates." Id. at 419 (Rehnquist, C.J., dissenting).

Here, the state argues the positive information about Cole's prison behavior
would not have made a difference because it was negated by the unfavorable evidence,
that is, Cole failing to report to jail after a work release shift. The problem with the
state's argument is two-fold. First and foremost, the jury was already aware of the
negative information. Cole's trial counsel failed to counter the negative information
already known to the jury with positive information from William Bradford, Romel
Cochrel, and Sister Judith Klump. Second, the negative information involved in
Williams (setting a jail cell on fire) was much more serious than Cole's negative
behavior (failure to report), and yet did not prevent the Supreme Court from finding
Williams suffered prejudice from his counsel's failure to investigate and present
positive jailhouse behavior.

Given Skipper's distinction between jailhouse behavior testimony directly from
jailers, as opposed to similar character evidence from a capital defendant or his family
members, the Missouri Supreme Court's decision that Cole's good jailhouse behavior
would have merely been cumulative of other evidence of Cole's good behavior is an
unreasonable application of Supreme Court precedent. In addition, the emphasis the
Supreme Court placed on presenting positive jailhouse behavior in Williams, despite
the existence of some negative information, belies Missouri's claim that Cole did not
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suffer prejudice from his trial counsel's failure to discover and present evidence of his
positive jailhouse behavior.

II

For the reasons stated, I respectfully dissent from the court's decision to affirm
the district court's denial of relief on the claim that Cole's trial counsel failed to
investigate and present evidence regarding Cole's exemplary prison conduct. I would
grant habeas relief on that claim and require Missouri to give Cole a new penalty
phase trial.
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