Martsay Bolder, Appellee/cross-Appellant v. Bill Armontrout, Appellant/cross-Appellee

LAY, Chief Judge,

dissenting.

I dissent. As the district court determined, Bolder’s trial counsel was constitutionally ineffective by failing to present evidence and a mitigating-evidence instruction on Bolder’s age at the time of the offense. As the district court found, there also can be little dispute that Bolder’s trial counsel, without a reasoned professional judgment, failed to investigate Bolder’s background for any mitigating evidence. Bolder v. Armontrout, 713 F.Supp. 1558, 1566-67 (W.D.Mo.1989).

I.

The majority opinion argues that Bolder’s age, twenty-one at the time of the offense, was not a “clearly mitigating” factor and that no reasonable probability exists that the jury would have been influenced by it. This ignores the law that age was a statutory mitigating factor for the jury’s consideration at the time of Bolder’s trial. See Mo.Ann.Stat. § 565.012.3(7) (Vernon 1979) (repealed 1983). Regarding the Missouri Court of Appeals’ suggestion that the jury could assess Bolder’s age from observing him in court, the federal district court aptly stated that:

Such a conclusion is dangerously speculative given the nature of the sanction at issue. The instructions in the case clearly instruct the jury to only consider those mitigating circumstances in evidence. The fact that Bolder may or may not appear youthful could easily be lost on the jury whose attention should be focused on the instructions.

Bolder, 713 F.Supp. at 1566. The mere possibility that Bolder appeared to be young and that the jury considered his age as a mitigating factor when they had not been told to do so should not be relied upon when an individual faces the death penalty.

The majority’s analysis of trial counsel’s failure to present other mitigating evidence is difficult to comprehend. The majority’s statement that trial counsel “presented no mitigating evidence ... because he believed that none existed” is meaningless. Maj. op. at 1360. The record is undisputed that Bolder’s trial counsel failed to investigate and produce mitigating evidence because he did not know he could present non-statutory mitigating evidence in Bolder’s defense.1 Bolder, 713 F.Supp. at 1567 n. 9.

The evidence before the federal district court showed that Bolder suffered from learning deficiencies, his parents divorced when he was very young, he was one of ten children living in a housing project, his father was an alcoholic who had a nervous breakdown when Bolder was a child and who used violence and abuse when attempting to return home, and his brother was killed at a young age. Id. at 1567. The district court found there was a reasonable probability that this evidence would have influenced the sentencing jury had it been introduced.2

*1369II.

Rather than considering the findings of the district court, the majority holds that Bolder procedurally defaulted at the post-conviction stage because he failed to adequately raise the claim of ineffective assistance of trial counsel in his Rule 27.26 petition. As the majority concedes, however, “ineffective assistance of post-conviction counsel can be ‘cause’ for purposes of lifting a procedural bar.” Simmons v. Lockhart, 915 F.2d 372, 376 (8th Cir.1990). See also Shook v. Clarke, 894 F.2d 1496, 1497 (8th Cir.1990); Shaddy v. Clarke, 890 F.2d 1016, 1018 n. 4 (8th Cir.1989) (per curiam).3

To succeed on a claim of ineffective assistance of counsel, a defendant must show a deficient performance by counsel and a reasonable probability of a different outcome but for counsel’s deficiency. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984). Post-conviction counsel’s performance in presenting the factual basis for the ineffective trial counsel claim was deficient. The majority states that nothing in the record supports a finding that post-conviction counsel failed to investigate the claim of trial counsel’s ineffectiveness regarding mitigating evidence. Maj. op. at 1365. This reasoning is baffling to me! It is refuted by the fact that federal habeas counsel did find such evidence. Had post-conviction counsel adequately pursued the claim through independent investigation into Bolder’s childhood, he or she would also have located this evidence because it was available.

The majority disagrees with the district court’s finding that post-conviction counsel was ineffective. The majority holds there was insufficient evidence adduced at the federal habeas hearing that post-conviction counsel was ineffective in not presenting factual support for the claim that trial counsel failed to investigate Bolder’s background. The majority, without analysis, simply states that

the record does not offer any insight into the reason that post-conviction counsel failed to present such factual support. Bolder did not testify that he provided any assistance to her, and nothing in the record supports a finding that she failed to investigate the claim. Thus, the ineffective assistance claim fails for a lack of support.

Maj. op. at 1365. I am unaware of any authority that states that Bolder, in order to demonstrate ineffective assistance of counsel, must prove the reason why counsel was ineffective. Similarly, I am unaware of any authority that states Bolder must show that he personally requested counsel to perform the legal responsibilities which reasonably skilled counsel would have automatically undertaken. Under Strickland, Bolder need only “identify the acts or omissions of counsel” that he asserts resulted in ineffective assistance. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Once Bolder has demonstrated that his post-conviction counsel failed to find and use available factual support for the claim of trial counsel’s ineffectiveness, he has satisfied his burden. I have great difficulty in understanding a principle of law that allows a man to be executed because he did not show why his post-conviction counsel was ineffective.

The evidence presented at the habeas hearing demonstrated a reasonable probability that, but for post-conviction counsel’s inadequate performance, the outcome of *1370the post-conviction proceeding would have been different. Bolder has thereby demonstrated actual prejudice resulting from the default. This court has observed that the prejudice requirements of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and Strickland are similar and intertwined. See Mercer v. Armontrout, 864 F.2d 1429, 1434 & n. 3 (8th Cir.1988). Here, post-conviction counsel’s failure to present the factual basis for Bolder’s claim of ineffective trial counsel resulted in Bolder’s inability to have the merits of that issue' examined.

The record clearly supports the district court’s determination that Bolder’s trial counsel’s performance was constitutionally deficient. He not only failed to present evidence and a mitigating-evidence instruction on Bolder’s age at the time of the offense, he also failed — without making a reasoned professional judgment — to investigate and present mitigating evidence from Bolder’s background. The Missouri Court of Appeals erred in concluding that trial counsel’s failure to present mitigating evidence was due to a lack of such evidence. Bolder v. State, 712 S.W.2d 692, 695 (Mo.Ct.App.1986).

The district court found “no valid mitigating evidence was presented to the sentencing jury — when valid mitigating evidence existed." Bolder, 713 F.Supp. at 1569. In Missouri, the decision to impose a death sentence is a balancing process. “Jurors are instructed to weigh mitigating factors against aggravating factors in deciding whether a defendant should live or die.” Id. at 1566. When a person’s life hangs in the balance, all available mitigating evidence should be presented for the jury to consider. The district court found there existed a reasonable probability that, had trial counsel presented evidence of Bolder’s troubled childhood and his age as mitigating factors, the jury “would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. at 2069. The record sustains this analysis. The total absence of any effort to present mitigating evidence clearly undermines the integrity of the jury’s conclusion in the sentencing phase of Bolder’s trial.

I would affirm the district court’s decision to grant the writ of habeas corpus and vacate the death sentence.

. The court stated that:

[cjounsel testified at the hearing on this petition that he had not considered investigating for this evidence. It is this [c]ourt’s opinion that counsel’s decision not to investigate [Bolder's] family or childhood background was not based on an understanding of controlling law and was not within the range of professionally reasonable judgment. This is not a situation where counsel had made a reasonable investigation that rendered the decision not to further investigate acceptable. Counsel testified before this [c]ourt that the existence of such evidence was not sought.

Bolder, 713 F.Supp. at 1567 (footnote omitted).

Contrary to the majority’s implication that Bolder instructed trial counsel not to investigate whether others besides family members could have provided mitigating background information, trial counsel testified at the habeas hearing that ”[t]he only people I recall him instructing me not to contact [were] his family.” Habeas Hrg. Tr. at 130.

. The majority incorrectly relies on United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir.1987), to support its argument that the failure to allege what a reasonable investigation would have revealed is fatal to Bolder’s claim of ineffective assistance of counsel.

*1369The Seventh Circuit held that the petitioner had to make, through the testimony of the potential witnesses, a comprehensive showing as to what an investigation would have produced. The court remanded the case for further development of the record. Id. at 1016-17. Here, Bolder made such a comprehensive showing by presenting to the district court the testimony which should have been discovered.

. According to Shaddy, Bolder must exhaust his state remedies on the claim of ineffective assistance of post-conviction counsel. Shaddy, 890 F.2d at 1017. Bolder meets this exhaustion requirement because he could not have raised his claim of ineffective assistance of post-conviction counsel in a successive Rule 27.26 motion. See State v. Brown, 633 S.W.2d 301, 302 (Mo.Ct.App.1982) (holding claim "not cognizable” in second Rule 27.26 proceeding). Missouri’s new Rule 29.15(k) prohibits all successive petitions. See Mack v. State, 775 S.W.2d 288, 292 (Mo.Ct.App.1989); see also Barks v. Armontrout, 872 F.2d 237, 239 (8th Cir.1989).