Kelvin Malone v. Daniel Vasquez, Warden, San Quentin State Prison Jeremiah W. (Jay) Nixon, Missouri Attorney General

MURPHY

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

I

Kelvin Malone was convicted of the 1981 murder of William Parr, a 62 year old taxi driver in Berkeley, Missouri, a St. Louis suburb. Richard Elder, a fellow Yellow Cab driver, testified at Malone’s trial that around 11:45 p.m. on March 17,1981, he was waiting in the cab line at the Greyhound Bus Terminal in St. Louis. Parr was first in line, and Elder heard the dispatcher tell Parr to pick up a package at First National Bank for delivery. The bank was less than three blocks from the bus terminal, and such deliveries were top priority. Parr left for the *714bank immediately. Elder passed the bank about four minutes after Parr left on the delivery run and saw Parr’s cab parked in front of the bank with the dome light on.

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

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

There was evidence that Kelvin Malone had arrived in St. Louis from California on the evening of March 17 with a suitcase and two .25 caliber pistols. Around 1:30 a.m: on March 18, Emmanuel Bego, who lived with Michael Crenshaw in Berkeley, heard a knock at the door. Bego heard Crenshaw say “Kelvin” when he went to the door, but Bego did not see who was there. Later that day Crenshaw left for California with Malone in Crenshaw’s car. After they departed, Bego found a Greyhound bus ticket in the basement for a trip leaving Los Angeles on March 15, with scheduled arrival in St. Louis at 12:40 a.m. on March 18.

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

Missouri charged Malone with the murder of William Parr. By the time of the trial on this charge in 1984, Malone had been convicted and sentenced to death in California for two murders that took place in that state just a few days after Parr was killed in Missouri.3 Counsel was appointed in the Parr case on November 28,1983, and Malone directed him to move to trial as quickly as possible; counsel began to meet with Malone about a month before trial commenced on March 26, 1984, and began detailed trial preparation two weeks before trial. In preparation for trial, counsel reviewed with Malone police reports, his earlier psychological examination, and other types of information. Malone presented no evidence during the guilt phase of his trial, and the only evidence he presented during the penalty phase was expert testimony by Professor James Gilsinan that the deáth penalty is not an effective deterrent. He also offered the testimony of Father Francis Cleary related to historical justifications for the death penalty, but it was not received. Malone directed his attorney not to contact members of his family about mitigating evidence because he wanted to avoid causing them additional pain. Malone was convicted on March 30, and on the next day the jury returned a verdict of death. He chose not to appear at sentencing on April 26, 1984, when he was sentenced to death. He was then returned to California where he remains incarcerated.4

Malone’s direct appeal of his Missouri conviction was unsuccessful. State v. Malone, 694 S.W.2d 723 (Mo.1985) (en banc). ' He *715then sought state postconviction relief under Missouri Criminal Procedure Rule - 27.26. Malone v. State, 747 S.W.2d 695 (Mo.Ct.App. 1988). His original petition was dismissed without prejudice because he was not in Missouri custody at the time it was filed and Rule 27.26 had a custody requirement. He later refiled his petition under Rule 29.15 after it replaced the earlier rule. The new rule did not require Missouri custody, and the trial court rejected the petition on the merits. Malone appealed to the Missouri Supreme Court which remanded for factual findings on whether Malone had complied with the Rule 29.15 requirement that a petitioner verify that the filing contained all his claims and that he understood they were otherwise waived. The trial court was instructed to make findings on whether, this verification requirement had been met and on whether the prosecution had exercised racially motivated peremptory challenges. The court found that Malone had not verified his petition and therefore dismissed it for lack of jurisdiction'. The Missouri Supreme Court affirmed, Malone v. State, 798 S.W.2d 149 (Mo.1990) (en banc), and later dismissed as moot Malone’s petition to recall the mandate and reinstate his appeal.

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

II.

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

Malone wishes to raise many issues on appeal, including various claims of ineffective assistance of counsel. He alleges trial counsel was ineffective in the guilt phase of his trial for failure to call two witnesses who would have testified that they could not identify the black man they had seen in Parr’s cab, to call United States District Judge George F. Gunn to testify that he was not harmed during an armed robbery by Malone, to introduce evidence of a polygraph suggesting that Malone did not commit one of the California murders, to prepare adequately for trial, to obtain a stipulation or testimony that two police officers found initial ballistics comparisons inconclusive, and to object to evidence of a towel used to wipe prints from Parr’s cab and to evidence that he gave a false name when arrested, to an improper closing argument, to the exclusion for cause of a potential juror based on his refusal to consider the death penalty, and -to several jury instructions. He argues that his trial counsel was ineffective in- the penalty phase for not presenting mitigating evidence from his family and not obtaining a new psychiatric examination or using the results, of his California exam. Malone argues that appellate counsel was ineffective by not raising on direct appeal every issue raised in his post-conviction litigation.

Malone also raises claims of prosecutorial misconduct. He claims the prosecution *716should not have introduced evidence of his prior convictions or misleading testimony by California prosecutor Gary Admire that Malone had admitted in his California trial that he had been in the vicinity where Parr was killed. He also says the prosecution improperly bolstered the credibility of prosecution witnesses, arguéd. facts not in evidence, and mentioned that he had admitted being near the crime scene, that the jury could act on the basis of personal feelings or the general need to prevent crime, and that he bore the burden of proof.

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

A.

Malone has abandoned several of the claims made to the district court by not presenting them in his appellate brief. Jasperson v. Purolator Courier Corp., 765 F.2d 736, 740-41 (8th Cir.1985). The abandoned claims include claims that he was denied due process and equal protection by Missouri’s delay in bringing him to trial, that he was improperly forced to choose between a speedy trial and sufficient time for his appointed counsel to prepare for trial, that the Rule 29.15 requirement that pro se petitioners verify their postconviction relief petitions violated his rights under the fifth, sixth, and fourteenth amendments, and a claim that the prosecution withheld potentially exculpatory information. Malone has also abandoned several claims of ineffective assistance of trial counsel,5 claims regarding jury selection,6 two claims of prosecutorial misconduct based on delay of trial and introducing hypnotically refreshed testimony, and a claim that permitting Gary Admire to repeat Malone’s testimony from his California trials violated his right against self incrimination. Other abandoned claims include ineffective assistance by state posteonviction counsel, a violation of his right to confront and cross-examine witnesses through the lack of preparation by trial counsel, failure to instruct the jurors on their ability to consider in mitigation all factors of Malone’s character, and improper instructions about the burden of proof and the weighing of aggravating factors. The law favors an adversarial presentation of issues in order to conserve judicial resources and to ensure that cases are resolved in the context of an actual dispute. Flast v. Cohen, 392 U.S. 83, 96-97, 88 S.Ct. 1942, 1950-51, 20 L.Ed.2d 947 (1968). The issues not presented in Malone’s brief should therefore be treated as abandoned and they need not be discussed.7 Jasperson, 765 F.2d at 740-41.

B.

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

Claims that have not been presented for state court review are defaulted. Sweet, 125 F.3d at 1149; Nave v. Delo, 62 F.3d 1024, *7171030 (8th Cir.1995). Malone never sought state court review of thirteen claims of ineffective assistance of trial counsel,8 seven claims of prosecutorial misconduct,9 a claim that the trial court was inconsistent in overseeing the striking of jurors for opposition to the death penalty, a claim that his right to confront and cross-examine witnesses was violated by trial counsel’s lack of preparation, four claims of improper jury instruction,10 and a claim that his death sentence resulted from the use of unconstitutional aggravating circumstances.

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

Malone’s counsel conceded at oral argument that under “the letter of the law” the claims raised in his state postconviction petition were procedurally barred, but he argues that they should be considered nonetheless. These claims include ineffective assistance of trial counsel,11 a claim that the prosecution violated his right to equal protection by exercising peremptory jury strikes on the basis of rahe, that the court made erroneous eviden-tiary rulings,12 that Missouri improperly delayed his trial, and that the venire panel was not sworn prior to voir dire.

In order for a state procedural rule to prevent federal review of Malone’s constitutional claims it must have been firmly established, regularly followed, and readily ascertainable when it was applied to him. Ford v. Georgia, 498 U.S. 411, 423, 111 S.Ct. 850, 857, 112 L.Ed.2d 935 (1991). This court has previously held that the verification requirement of Rule 29.15 is an independent and adequate state procedural bar. See Oxford v. Delo, 59 F.3d 741, 745 (8th Cir.1995). It is an independent state basis for decision because it is neither intertwined with, nor dependent upon, federal law, Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 1092, 84 L,Ed.2d 53 (1985), and an adequate basis because it meets the Ford test. At the time Malone’s petition was dismissed for failure to comply with Rule 29.15, the Missouri verification rule was firmly established and eonsis-*718tently enforced under the rule and its predecessor. Malone, 798 S.W.2d at 151; see also Mills v. State, 769 S.W.2d 469, 470 (Mo.Ct. App.1989); Riley v. State, 588 S.W.2d 738, 741 (Mo.Ct.App.1979); State v. Rector, 547 S.W.2d 525, 526 (Mo.Ct.App.1977). The rule was readily ascertainable as well. Rule 29.15(d) clearly stated that a “movant shall declare” that all his claims are included and that those not included are waived. Mo. R.Crim.P. 29.15(d). It also referred petitioners to Criminal Procedural Form No. 40, a sample form for a Rule 2915 petition which included a verification statement with a blank for the petitioner’s signature.

The claims included in Malone’s unverified state petition may not now be considered on the merits because the bar in Rule 29.15 is an independent, adequate state ground for decision. Oxford, 59 F.3d at 745. This panel is bound by that holding unless the court en banc were to reconsider the issue. Campbell v. Purkett, 957 F.2d 535, 536 (8th Cir.1992). The dissent argues that the rule was not clearly established and regularly followed at the time it was applied to Malone, but that argument is not persuasive. Both at the time Malone’s unverified petition was filed and at the time it was considered by the state courts Missouri had consistently treated the failure to verify as a jurisdictional defect that prevented consideration of a petition. See State v. Vinson, 800 S.W.2d 444, 447 (Mo.1990) (en banc); Malone v. State, 798 S.W.2d at 151; Reynolds v. State, 783 S.W.2d 500 (Mo.Ct.App.1990); Shepherd v. State, 637 S.W.2d 801, 803 (Mo.Ct.App.1982); State v. Rector, 547 S.W.2d 525, 526 (Mo.Ct. App.1977). All but one of the cases the dissent cites in support of its argument that the rule was unsettled were decided after Malone failed to comply with the verification requirement and after the rule had been applied to him.

The lone ease the dissent relies upon that had been decided at the time Malone’s petition was considered by the state courts does not help him. See Rodden v. State, 795 S.W.2d 393 (Mo.1990) (en banc). The merits of an unverified petition were considered in Rodden, but in that case involving Rule 27.26 the state had not objected to the lack of verification until an appeal was filed. Since Rule 27,26 placed no time limit on amendments, an unverified petition could be amended to include verification in the absence of an objection. Id. at 395. The Rod-den court held that such an objection had to be made before the petition reached an appellate court. Because of the state’s failure to make a timely objection in Rodden, the merits had to be reached. The court expressly distinguished the new Rule 29.15, which placed a time limit on amendments strict limitation on the time to amend a petition in order to comply with the verification requirement and made verification a jurisdictional prerequisite that could be raised at any time. Id. Failure to verify within the time allowed under Rule 29.15 is treated as a jurisdictional defect barring consideration of the petition no matter when the objection is made. Id, citing Kilgore, 791 S.W.2d 393 and Reynolds, 783 S.W.2d 500. Malone failed to comply with this jurisdictional prerequisite by not filing a verified Rule 29.15 motion even though verification was a well settled and consistently applied rule at the time. There is therefore no inconsistency between his case and Rodden because they were decided under different rules with different limitations on verification.

The dissent argues that Malone’s failure to verify his petition does not amount to procedural. default because the fault was that of his postconviction counsel and subsequent Missouri cases required a remand in such circumstances to explore fault, but these cases were not decided until after Malone’s petition was rejected. There is no entitlement to postconviction counsel, Coleman v. Thompson, 501 U.S. 722, 755, 111 S.Ct. 2546, 2567-68, 115 L.Ed.2d 640 (1991), and any failure of Malone’s counsel to satisfy the requirements of Rule 29.15 is not a basis to excuse the procedural bar. Id.; Nave, 62 F.3d at 1034. In any event, Malone was not prejudiced by the failure to comply with the verification requirement because the state court did consider and reject on the merits all the claims he raised.

Almost all of the claims Malone attempts to assert in his habeas petition have been procedurally defaulted. This includes both *719those never presented to the state courts, Sweet, 125 F.3d at 1149; Nave, 62 F.3d at 1030; and those which were raised in his unverified postconvietion petition. We are bound by the state court’s factual finding that Malone failed to comply with the verification requirement of Rule 29.15, 28 U.S.C. § 2254(e)(1), and by our precedent in Oxford that the Missouri verification requirement is a firmly established rule of state procedure that bars consideration of a petition for habe-as corpus unless there has been compliance. 59 F.3d at 745.

C.

Unless Malone can demonstrate cause and prejudice to excuse his default, Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1986), or a fundamental miscarriage of justice, Schlup v. Delo, 513 U.S. 298, 316, 115 S.Ct. 851, 861-62, 130 L.Ed.2d 808 (1995), federal habeas review is unavailable because the final state court , to review his claims clearly and expressly relied on an independent, adequate procedural rule to dismiss them. Harris v. Reed, 489 U.S. 255, 261, 109 S.Ct. 1038, 1042, 103 L.Ed.2d 308 (1989); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977). Malone asserts he can show cause to overcome the default in three ways. He claims he was unable to comply with Missouri procedure because!he was mentally ill, incarcerated in California, and received ineffective assistance from his trial and postcon-viction counsel. .

Establishing cause requires a' showing of some external impediment that frustrates a petitioner’s ability to comply with the state procedural rule. Murray, 477 U.S. at 488, 106 S.Ct. at 2645-46. The record in this case includes no evidence that mental illness hindered Malone’s ability to consult, with counsel, file pleadings, or otherwise comply with Missouri requirements for post-conviction relief so mental illness is not cause to excuse his procedural default. Garrett v. Groose, 99 F.3d 283, 285 (8th Cir.1996) (conclusive showing of incompetence is necessary). While being incarcerated in California may have made filing his petition in Missouri slightly more cumbersome, Malone has not shown it interfered with his ability to file. His California incarceration did not amount to state interference with his access to the courts and is therefore not cause. See e.g., Lamp v. State of Iowa, 122 F.3d 1100, 1105 (8th Cir.1997) (no cause where petitioner’s access to court is not blocked); Cf. Amadeo v. Zant, 486 U.S. 214, 220-21, 108 S.Ct. 1771, 1775-76, 100 L.Ed.2d 249 (1988) (deliberately withholding evidence of a plan to exclude black jurors constitutes cause). Any error by Malone’s postconviction counsel could not be cause 'because there is no constitutional entitlement to post-conviction counsel. Coleman, 501 U.S. at 755, 111 S.Ct. at 2567-68. Since the alleged errors by his trial counsel did not impede his ability to comply with the verification requirement of Rule 29.15, they also are not cause. Murray, 477 U.S. at 488, 106 S.Ct. at 2645-46; Lamp, 122 F.3d at 1105.

Even if Malone were to show cause to excuse his procedural default, he has not shown actual prejudice. Any error by Malone’s postconviction counsel is irrelevant since there is no entitlement to counsel at that stage. Coleman, 501 U.S. at 755, 111 S.Ct. at 2567-68. Malone asserts that the ineffectiveness of his trial counsel prejudiced him by the failure to present mitigating evidence or to raise all the issues included in his federal habeas petition. No duty exists to raise every nonfrivolous issue that is available, however, Lamp, 122 F.3d at 1106, and Malone was hot prejudiced by counsel’s decision not to raise every conceivable claim. Malone’s asserted mental illness and California incarceration did not prejudice him because he has not shown that they interfered with his ability to comply with Rule 29.15 or otherwise seek postconviction relief. Lamp, 122 F.3d at 1105.

Malone' also argues that his procedural default should be excused under the fundamental miscarriage of justice exception. To invoke this exception, Malone must demonstrate that new evidence unavailable at the time of trial makes his actual innocence of the crime sufficiently likely to warrant consideration of his procedurally barred claims. Schlup, 513 U.S. at 315, 115 S.Ct. at 861. *720Malone has not presented any such evidence. He merely asserts in his brief that “Constitutional errors, primarily attorney failure to investigate, probably caused his death sentence.” This is insufficient to make out a gateway claim of actual innocence under Schlup, let alone the more exacting standard for a substantive claim of actual innocence. Id at 317,115 S.Ct. at 862.

Because Malone has not made a showing of cause and prejudice or actual innocence, the claims presented in his unverified state post-conviction motion are procedurally barred from further review.

III.

A.

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

We affirm the district court’s disposition of this claim. Claims argued with no specificity are waived. Sweet, 125 F.3d at 1159. A claim of ineffective assistance of counsel requires a showing that deficient performance by counsel prejudiced the defendant by depriving him of a fair trial with a reliable result. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984). Malone has cited no specific error by his appellate counsel, nor has he demonstrated that the failure to raise every conceivable claim prejudiced him. Even were we to credit Malone’s generalized claim, the failure of appellate counsel to raise all conceivable arguments is not in itself error and the claim would fail on the merits. See Lamp, 122 F.3d at 1106.

B.

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

Although Malone made a prima facie Batson claim by establishing that he is black and that the prosecutor engaged in a pattern of striking blacks from the jury, Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1722-23, 90 L.Ed.2d 69 (1986), he failed to rebut the prosecutor’s proffered racially neutral reasons for those strikes. Purkett v. Elem, 514 U.S. 765, 767-69, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995). The state trial court considered and rejected this claim three times: on Malone’s motion to quash the jury at the conclusion of voir dire, on his motion for a new trial, and on remand from the Missouri Supreme Court. On remand the court specifically found that the prosecutor had race-neutral reasons for his peremptory strikes and that Malone had not shown those reasons to be pretextual. Review of this claim is controlled by these factual findings which we must presume to be connect. 28 U.S.C. § 2254(e)(1); Purkett, 514 U.S. at 767-72, 115 S.Ct. at 1771-72. We have also carefully considered the record of the proceeding and agree with the state court’s conclusions.13

*721Malone also claims his counsel was ineffective in the sentencing phase of his trial by failing to contact his family about testifying and by fading to obtain a new psychological examination or to introduce an existing psychological report. Malone specifically told his attorney not to contact family members to avoid causing them more pain. Malone of course would have been in the best position to know how his family reacted to his troubles with the law, and Missouri rules of professional responsibility provide that attorneys should, “defer to the client regarding such questions as ... concern for third parties Mo.R.P.C. 1.1. A professional guideline is a' relevant measure to evaluate counsel’s performance. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65. Additionally, during Malone’s Missouri postconviction proceeding his trial counsel testified that he had talked with Malone’s father and sister prior to the Parr trial and that he thought he had spoken with the mother as well. He also had before him the record of the penalty phase of the California trial which contained family testimony about Malone’s upbringing and background, including his violations of the law from an early age. The decision not to call family members to testify in mitigation has been recognized as a “strategic decision” that is “normally left to counsel’s judgment.” Fretwell v. Norris, 133 F.3d 621, 1998 WL 3583, *6 (8th Cir.1998) (internal citations omitted). As to the psychological evidence, the record does not indicate that Malone behaved in a manner suggesting the need for a new examination, and his existing report contained potentially damaging evidence relating to his misconduct in San Quentin and his extensive criminal history.

Counsel’s decisions thus appear to fall within the range of reasonable representation, Strickland, 466 U.S. at 686, 104 S.Ct. at 2063-64; see also Hayes v. Lockhart, 852 F.2d 339, 348 (8th Cir.1988), but even if we presume his attorney’s performance was deficient, Malone has not shown prejudice. Counsel conceded at oral argument that at least one of the four aggravating factors found by the jury was valid, and this is sufficient to support a death sentence under Missouri law. State v. Kenley, 693 S.W.2d 79, 82 (Mo.1985) (en banc). The facts of the Parr murder .suggested a callous indifference to the life of another, and the jury heard evidence that at age twenty Malone had been involved in multiple murders over the course of-several days. When testimony-by Mar lone’s family was considered in a hearing on his Rule 29.15 motion, it demonstrated that Malone was involved in criminal activity at a young- age and that he had consistently demonstrated anti-social behavior. His existing psychological report showed that he had pressured other inmates to get their food and had physically threatened guards in jail. Such evidence of a troubled background and violent behavior is “by no means uniformly helpful.” Burger v. Kemp, 483 U.S. 776, 793, 107 S.Ct. 3114, 3125, 97 L.Ed.2d 638 (1987). In light of the whole record any mitigating evidence from family members about his upbringing and psychological difficulties would not have made a different sentence sufficiently likely to support an ineffective assistance of counsel claim. Id. at 694, 104 S.Ct. at 2068.

IV.

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

. The Honorable Jean C. Hamilton, Chief United States District Judge for the Eastern District of Missouri.

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

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

.These ineffective assistance claims include failure to object to introduction of a Greyhound bus schedule and to an improperly empaneled jury, failure to preserve issues for appeal, and moving to strike venire member Berits for cause. (The latter claim is puzzling since the record shows that defense counsel objected to Berits being removed for cause because of her claim that her employer would not release her from work.)

. The abandoned claims regarding jury selection are allegations that the venire panel was not a fair cross section of the community, jurors were improperly excused without cause, a separate jury was not selected for the penalty phase of trial, and the venire panel was not sworn before voir dire.

. We have reviewed these claims nonetheless, and they would fail in any event because of other procedural bars or on the merits.

. These claims are that counsel was ineffective by failing to prepare adequately for trial; to investigate state witnesses; to prepare for the cross examination of Gary Admire, to present the results of Malone's polygraph test; to call Judge Gunn; to object to evidence of the false name he gave at arrest, a towel used to wipe prints from Parr's cab, and his prior crimes; to object to the composition of the juty panel or the exclusion of a potential juror based on his opposition to the death penalty or improper closing argument; to use the California psychological report; and to assess independently his mental health.

. These claims are that the prosecutor engaged in misconduct by introducing misleading evidence and evidence of Malone’s prior crimes and by an improper closing argument (arguing that Malone had the burden of proof, that the jury could act on personal feeling or general desire to enforce the law, arguing facts not in evidence, and bolstering the credibility of state witnesses).

. Malone claims that the jury was improperly instructed that it must unanimously find particular mitigating factors and not instructed on the limits Missodri imposes on weighing aggravating and mitigating factors .and that all elements of the crime and any aggravating factors must be found beyond a reasonable doubt. Malone also alleges his trial counsel was ineffective in failing to object to these errors at trial.

. Malone claims counsel erred in his failure to subpoena witnesses who saw a black man in Parr's cab, depose Richard Elder, obtain expert testimony on hypnotically refreshed testimony, contact Crenshaw to testify, obtain stipulations or testimony that initial ballistics tests were inconclusive, call his family to testify in mitigation, and use his existing psychological report or obtain a new one.

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

. The prosecutor said venire member Henderson was stricken, because she had been the victim of an armed robbery, .and none of the white jurors noted by the dissent had personally been the victim of a violent crime. Venire member Goode was stricken because he seemed familiar to the prosecutor and was the son of a minister. Although a white venire member who had spent seven years in the seminary was not stricken, he did not have the additional characteristic of being familiar to the prosecutor. The prosecutor said he struck venire member Simmons because he resided in Berkeley and the prosecutor believed from his experience it was *721not a good idea to have jurors who were familiar with the area of a crime.