dissenting.
The government joined Richard Oxford in his request that we authorize the district court to consider his third petition for writ of habeas corpus. In light of the government’s position, I would grant Oxford leave to file his petition in the district court. The majority, however, has decided to deny Oxford’s application. Because Oxford raises valid claims of ineffective assistance of trial counsel that have never been addressed on the merits by any court, I dissent.
As I expressed in my original dissent in this case, Oxford’s counsel was ineffective at the sentencing proceedings because he failed to present mitigating evidence as to why Oxford should not be sentenced to death. Oxford v. Delo, 59 F.3d 741, 749 (8th Cir. 1995), cert. denied, — U.S.-, 116 S.Ct. 1361, 134 L.Ed.2d 528 (1996). The record contains overwhelming mitigating evidence of Oxford’s troubled social, mental, and emotional history. At the sentencing phase, however, his trial counsel presented virtually no mitigating evidence to the jury. As I previously stated:
“The jury is entitled to receive as much information as possible in order to make an informed decision as to punishment.” State v. Leisure, 749 S.W.2d 366, 379 (Mo. 1988) (citations omitted), cert. denied, 506 U.S. 923, 113 S.Ct. 343, 121 L.Ed.2d 259 (1992). The concept of individualized sentencing in capital cases requires that the sentencer possess “the fullest information possible concerning the defendant’s life and characteristics” as well as the circumstances of the particular offense. Lockett v. Ohio, 438 U.S. 586, 602-04, 98 S.Ct. 2954, 2963-64, 57 L.Ed.2d 973 (1978) (internal quotations and citations omitted).
Id. Had Oxford’s trial counsel presented the available mitigating evidence, I am convinced that no reasonable jury would have sentenced him to death.
The majority declined to consider the merits of Oxford’s ineffective assistance claims because of a state procedural bar. Specifically, Oxford failed to verify his amended motion for post-conviction relief, as previously required under Rule 29.15 of the Missouri Rules of Criminal Procedure. Recent amendments to Rule 29.15, eliminate the verification requirement, thereby removing the only impediment to our review of Oxford’s claims on their merits. Neither the law nor my conscience permits me to sign onto the majority’s opinion. We should undertake this review promptly.