Worthington v. Roper

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 09-1802
No. 09-2000
___________

Michael Shane Worthington, *
*
Appellee/Cross-Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Don Roper, *
*
Appellant/Cross-Appellee. *
___________

Submitted: September 23, 2010
Filed: January 6, 2011
___________

Before GRUENDER, ARNOLD, and SHEPHERD, Circuit Judges.
___________

GRUENDER, Circuit Judge.

The Circuit Court of St. Charles County, Missouri, sentenced Michael
Worthington to death after he pled guilty to one count of first-degree murder, one
count of first-degree burglary, and one count of forcible rape. Following unsuccessful
state appeals and postconviction proceedings, Worthington filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254, arguing seven grounds for relief. The
district court granted his petition on one ground, from which Warden Don Roper now
appeals. Worthington, in turn, cross-appeals from the district court’s rejection of two
other grounds, for which the district court issued a certificate of appealability. For the
reasons that follow, we reverse the district court’s grant of Worthington’s petition and
affirm the district court’s denial with respect to his two additional claims.

I. BACKGROUND

In 1995, Worthington was charged with burglary, and the rape and murder of
his neighbor, Melinda Griffin. The following facts are drawn from the Missouri
Supreme Court’s description of the incident in its opinion affirming Worthington’s
sentence. See State v. Worthington, 8 S.W.3d 83 (Mo. banc 1999). On the night of
September 29, 1995, Worthington broke into Griffin’s St. Charles County
condominium. He used a razor blade to cut through the screen in the kitchen window
and confronted Griffin in her bedroom. After strangling her into unconsciousness,
Worthington raped Griffin with such force that he bruised the inside of her vagina,
tore both labia minora, and made a deep tear between her vagina and anus. Griffin
regained consciousness during the rape and attempted to fight Worthington, but he
beat her and strangled her again, this time killing her. He then stole her jewelry, credit
cards, mobile phone, keys, and car.

A neighbor discovered Griffin’s remains on October 1. Her naked body was
found at the foot of her bed, with a lace stocking draped across it. DNA testing later
identified Worthington’s semen on Griffin’s body. When police officers located
Worthington that evening, he was wearing a fanny pack containing Griffin’s jewelry
and keys. After he was arrested, Worthington initially told the investigating officers
that he had been high and intoxicated from using alcohol and various other drugs for
the previous four days. Upon being presented with the evidence against him, he
confessed to killing Griffin but said that he could not remember the details of the
incident.

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 The State charged Worthington with one count of first-degree murder, one
count of first-degree burglary, and one count of forcible rape. He initially retained
attorney Joel Eisenstein to represent him, but Eisenstein later withdrew. Worthington
then retained attorneys N. Scott Rosenblum, Joseph L. Green, and Bradford Kessler,1
all experienced capital defense attorneys. On August 28, 1998, Worthington pled
guilty to all three charges without a plea agreement. He waived a jury for sentencing.

The four-day sentencing hearing commenced on September 14, 1998, at which
time the State presented victim impact statements, forensic evidence, and evidence of
Worthington’s lengthy criminal history. A detective with the Peoria, Illinois Police
Department testified that Worthington had been arrested fifteen times—often in
connection with burglaries—and had been listed as a “suspect or criminal” in
connection with another fifteen cases. At least three of the incidents involved
Worthington breaking into his grandmother’s house. In addition, the police records
indicated that Worthington twice had assaulted his ailing grandfather, first by
grabbing him and threatening his life and the second time by firing a gun at him. The
State also presented evidence that Worthington repeatedly had been convicted for
burglary as a juvenile and twice had been institutionalized in juvenile correctional
facilities. He also was imprisoned twice by the Illinois Department of Corrections.
Further, the State presented evidence that Worthington engaged in a pattern of
disruptive and assaultive behavior while incarcerated after Griffin’s murder, including
fighting with inmates, threatening and attempting to assault correctional officers, and
hiding contraband—including a razor blade—in his cell.

The State also called Dr. Max Givon, a psychologist. Dr. Givon had examined
Worthington in 1996, pursuant to the defense’s motion for a pretrial mental
evaluation. See Mo. Rev. Stat. §§ 552.015-.030. In preparation for his report, Dr.
Givon interviewed Worthington twice, administered an MMPI-2 psychological test,

1
Kessler withdrew from representation upon the dissolution of his partnership
with Rosenblum.
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and reviewed an extensive collection of records chronicling Worthington’s
background. He concluded that Worthington did not have a mental disease or defect,
but instead that he had antisocial personality disorder, was malingering and cocaine-
dependent, and abused alcohol.

In preparation for the penalty phase, attorney Green had two brief conversations
with Worthington’s mother and contacted Carol Tegard, Worthington’s maternal aunt,
who later would testify at the penalty hearing. Green did not obtain records other than
those compiled during Dr. Givon’s 1996 evaluation. Based on Dr. Givon’s
unfavorable conclusions regarding Worthington’s mental health, Green did not
consider further pursuing an expert psychological mitigation strategy at the penalty
phase. Attorney Rosenblum, however, retained Dr. Kevin Miller, a psychiatrist, in
early August 1998, initially for the purpose of exploring a diminished capacity
defense at the guilt phase. He provided Dr. Miller with Dr. Givon’s report, along with
police investigative reports and partial records of Worthington’s 10-day psychiatric
hospitalization in 1994. Additionally, Rosenblum invited Dr. Miller to request further
materials from Dr. Givon directly, and Dr. Miller met with Worthington twice. Dr.
Miller’s conclusions corroborated Dr. Givon’s unfavorable diagnoses of antisocial
personality disorder, cocaine dependance, and alcohol abuse. Dr. Miller also
concluded that there was evidence that Worthington was suffering from attention-
deficit/hyperactivity disorder, post-traumatic stress disorder, major depressive
disorder (in remission), and that he had a history of cocaine-induced psychosis.
However, Dr. Miller indicated that there was insufficient evidence to draw a definite
conclusion on bipolar disorder, dissociative disorder, malingering, and complex partial
seizures.

As a result of this second evaluation, Rosenblum decided against raising a
psychological mitigation argument at the penalty phase. Instead, the defense team
focused on Worthington’s abusive background. Counsel presented the testimony of
Carol Tegard, who recounted Worthington’s abuse and neglect as a child. Counsel
also presented numerous documents detailing Worthington’s dysfunctional
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background, including his mother’s chronic alcoholism, his father’s heroin addiction,
and physical abuse and neglect by his family and babysitter. The presentence report
(“PSR”), prepared by the Missouri Board of Probation and Parole for the sentencing
court, confirmed these accounts and described incidents where Worthington was the
victim of sexual abuse. In addition, counsel called three inmates and the records
custodian from the St. Charles County Jail in an effort to undermine evidence
pertaining to Worthington’s misconduct while incarcerated. Finally, Dr. Roswald
Evans, a psychiatric pharmacist, testified that Worthington was intoxicated at the time
of the crime and that his intoxication “rendered him . . . incapable of making a
decision about his behavior.”

At the conclusion of the penalty phase, the sentencing court announced that it
found as non-statutory mitigating circumstances that Worthington was raised in a
dysfunctional family, was abused and neglected as a child, and was a long-term drug
abuser. The court also found two statutory aggravating circumstances beyond a
reasonable doubt: (1) that Worthington committed the murder while engaged in the
perpetration of forcible rape and first-degree burglary, and (2) that Worthington
committed the murder for the purpose of receiving money or things of monetary value
from the victim. The court then sentenced Worthington to death on the murder count
and sentenced him to terms of thirty years and life imprisonment for the burglary and
the rape, respectively. The Missouri Supreme Court affirmed the sentence of death.
Worthington, 8 S.W.3d at 94.

Worthington then filed a pro se motion for postconviction relief under Missouri
Supreme Court Rule 24.035(j). The postconviction trial court subsequently appointed
counsel, who filed an amended motion. Among other claims, Worthington asserted
that trial counsel was constitutionally ineffective for failing to investigate his
background adequately and to provide a complete social history to expert witnesses.
Had experts further examined his background and his family’s mental-health history,
Worthington alleged, they would have been able to present testimony that he did
indeed suffer from mental disease or defect. In support of his argument, Worthington
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presented three expert witnesses—Drs. Jonathan Pincus, Dennis Cowan, and Robert
Smith—who testified that Worthington suffered from a number of mental disorders,
including Tourette’s Syndrome, obsessive-compulsive disorder, attention-
deficit/hyperactivity disorder, post-traumatic stress disorder, and bipolar disorder.
Worthington also argued that trial counsel was constitutionally ineffective for failing
to investigate and present additional mitigation evidence through his parents’
testimony, and that counsel was constitutionally ineffective for failing to investigate
and object to one of the State’s penalty phase witnesses, Charlotte Peroti. The trial
court denied Worthington’s motion for postconviction relief, Worthington v. State,
No. 00-12558 (Mo. Cir. Ct. St. Charles Cnty. filed Dec. 5, 2003), and the Missouri
Supreme Court affirmed, Worthington v. State, 166 S.W.3d 566 (Mo. banc 2005).

In 2005, Worthington filed a petition for a writ of habeas corpus in the United
States District Court for the Eastern District of Missouri, pursuant to 28 U.S.C.
§ 2254. His petition sought review of seven claims, including the three discussed
above. The district court held that the state courts had not adjudicated the merits of
Worthington’s claim that trial counsel had failed to adequately investigate and pursue
psychological mitigation evidence. Worthington v. Roper, 619 F. Supp. 2d 661 (E.D.
Mo. 2009). Applying de novo review, the district court granted habeas relief on that
claim and ordered that Worthington either be sentenced to life in prison without the
possibility of parole or be given a new penalty phase hearing. Although it denied
relief on the remaining claims, the court granted a certificate of appealability with
respect to (1) whether counsel was constitutionally deficient for failing to investigate
and present additional mitigation evidence through the testimony of Worthington’s
parents, and (2) whether counsel was constitutionally deficient for failing to
investigate and object to Charlotte Peroti’s testimony. For the reasons discussed
below, we affirm the district court’s denial of Worthington’s two ineffective-
assistance claims, and we reverse its grant of relief on the ineffective-assistance claim
relating to psychological mitigation evidence.

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II. DISCUSSION

A. Warden Roper’s Appeal

Warden Roper appeals the district court’s ruling that Worthington’s attorneys
were ineffective during the penalty phase because they failed to investigate adequately
his social history and medical history, including his family’s background, and pursue
a psychological mitigation strategy based on expert testimony. We review de novo
the district court’s legal conclusions, Armstrong v. Kemna, 365 F.3d 622, 626 (8th Cir.
2004), “including its application of the standards of review imposed by AEDPA,”
Chadwick v. Janecka, 312 F.3d 597, 605 n.6 (3d Cir. 2002). The district court’s
findings of fact are reviewed for clear error. Armstrong, 365 F.3d at 626.

Under 28 U.S.C. § 2254 as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), a decision by a state court “with respect to any
claim that was adjudicated on the merits in State court proceedings” is entitled to
deference by the federal courts. “[W]hen a state prisoner files a petition for writ of
habeas corpus in federal court we are directed to undertake only a limited and
deferential review of underlying state court decisions.” Collier v. Norris, 485 F.3d
415, 421 (8th Cir. 2007) (quoting Morales v. Ault, 476 F.3d 545, 549 (8th Cir. 2007)).
AEDPA instructs that habeas relief cannot be granted “unless the adjudication of the
claim . . . resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States,” or “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). A state court decision is “contrary to” clearly
established federal law if it either “arrives at a conclusion opposite that reached by
[the Supreme] Court on a question of law” or “decides a case differently than th[e]
[Supreme] Court has on a set of materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 412-13 (2000). A state court “unreasonably applies” Supreme
Court precedent if it “identifies the correct governing legal principle from th[e]
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[Supreme] Court’s decisions but unreasonably applies that principle to the facts of the
prisoner’s case.” Id. at 413. “A federal court may not issue the writ simply because
it ‘concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly. Rather, that application
must also be unreasonable.’” Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir. 2005)
(quoting Williams, 529 U.S. at 411).

The language of § 2254(d) plainly limits the applicability of AEDPA’s
deferential standard to claims that have been “adjudicated on the merits” in state court.
Brown v. Luebbers, 371 F.3d 458, 460 (8th Cir. 2004) (en banc). Absent state court
adjudication, a federal habeas court will apply de novo review. Rompilla v. Beard,
545 U.S. 374, 390 (2005) (citing Wiggins v. Smith, 539 U.S. 510, 534 (2003)). As a
threshold matter, then, we must determine whether the Missouri courts adjudicated the
merits of Worthington’s claim that counsel was constitutionally ineffective for failing
to investigate adequately his background and present effective psychological
mitigation expert testimony at the penalty phase. Neither party argues that the
Missouri Supreme Court adjudicated the claim’s merits.2 Rather, Warden Roper
contends that the district court should have “looked through” the silent supreme court

2
Because the issue was not contested, we will assume, without deciding, that
the Missouri Supreme Court did not adjudicate the merits of the claim for purposes
of AEDPA review. We observe, however, that the Missouri Supreme Court
mentioned the claim at issue early in its opinion but never discussed it thereafter, 166
S.W.3d at 574 n.2, and that the court rejected Worthington’s appeal in its entirety. It
is well established in this circuit that a state court decision need not include reasoning
as a prerequisite to applying AEDPA review, see James v. Bowersox, 187 F.3d 866,
869 (8th Cir. 1999); see also Weaver v. Bowersox, 438 F.3d 832, 838 (8th Cir. 2006)
(“[A]lthough the [omitted] claims were not specifically discussed, the Missouri
Supreme Court did address the claims in a conclusory fashion that is sufficient to
bring the case under AEDPA.”), and we note that Harrington v. Richter—currently
pending before the Supreme Court—may shed further light on the contours of this
issue, No. 09-587 (U.S. argued Oct. 12, 2010) (raising issue of whether AEDPA
deference applies to a state court’s summary disposition of a Sixth Amendment
claim).
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opinion and applied AEDPA’s deferential review to the postconviction trial court
decision. See Ylst v. Nunnemaker, 501 U.S. 797 (1991); Mark v. Ault, 498 F.3d 775
(8th Cir. 2007). This contention requires two related inquiries. First, did the
postconviction trial court adjudicate the merits of Worthington’s claim? Second, if
the postconviction trial court did adjudicate the merits, should a federal habeas court
“look through” the Missouri Supreme Court’s decision and evaluate the
postconviction trial court’s reasoned decision under the deferential AEDPA standard?

As to the first inquiry, we conclude that Worthington’s claim was indeed
adjudicated on the merits by the postconviction trial court. That court correctly
recognized Strickland v. Washington, 466 U.S. 668 (1984), as requiring proof that
counsel’s performance was objectively deficient and that the defendant was prejudiced
thereby. Worthington, No. 00-12558, slip op. at 7-12. The court also determined that
“[t]rial counsel’s pre-trial conduct in having [Worthington] examined by two mental
health professionals and consulting with and calling as a witness . . . a doctor of
pharmacy, was a reasonable and thorough investigation.” Id. at 10. Concluding that
Worthington had failed to satisfy either Strickland prong, the court stated:

[T]rial counsel did conduct a reasonable investigation and made a
reasonable decision that made further investigations unnecessary. The
court further finds that [Worthington] has failed to demonstrate that his
trial counsel failed to exercise the customary skill and diligence that a
reasonably competent attorney would exercise under substantially
similar circumstances and that he was thereby prejudiced.

Id. at 11. Despite the postconviction trial court’s treatment of his ineffective-
assistance claim, Worthington now argues that it did not adjudicate this portion of his
claim because it did not adequately scrutinize his allegation that counsel performed
ineffectively at the penalty phase by failing to supply experts with comprehensive
background information. This argument fails to persuade, however, because a review
of the postconviction trial court’s decision leaves no question that it rejected

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Worthington’s ineffective-assistance claim in toto.3 “AEDPA’s requirement that a
petitioner’s claim be adjudicated on the merits by a state court is not an entitlement
to a well-articulated or even a correct decision by a state court.” Weaver, 438 F.3d at
839 (quoting Muth v. Frank, 412 F.3d 808, 815 (7th Cir. 2005)). Accordingly, the
postconviction trial court’s discussion of counsel’s performance— combined with its
express determination that the ineffective-assistance claim as a whole lacked
merit—plainly suffices as an adjudication on the merits under AEDPA.

As to the second inquiry, when a state appellate court affirms a lower court
decision without reasoning, we “look through” the silent opinion and apply AEDPA
review to the “last reasoned decision” of the state courts. See Winfield v. Roper, 460
F.3d 1026, 1038 (8th Cir. 2006) (citing Ylst, 501 U.S. at 803-04); cf. Mark, 498 F.3d
at 783 (“looking through” to Iowa Court of Appeals decision where Iowa Supreme
Court denied discretionary review) (citing Ylst, 501 U.S. at 803-04). This is so
regardless of whether the affirmance was reasoned as to some issues or was a
summary denial of all claims. See Winfield, 460 F.3d at 1038 (citing Steward v. Cain,
259 F.3d 374, 377 (5th Cir. 2001)); see also Bond v. Beard, 539 F.3d 256, 289 (3d
Cir. 2008) (“[W]e should review the [postconviction trial court] decision since it either
represents the state courts’ last reasoned opinion on this topic or has not been
supplemented in a meaningful way by the higher state court.”). Worthington urges
this court to limit the “look through” doctrine to its original application by the
Supreme Court in Ylst—determining whether an independent state ground
procedurally bars a petitioner from seeking federal habeas review. However,
Worthington’s narrow reading is foreclosed by our decision in Mark, where we used

3
In his primary ineffective-assistance claim presented to the postconviction trial
court, Worthington intertwined allegations that counsel failed to investigate and
present sufficient mitigation testimony through additional witnesses at the penalty
phase with allegations that counsel failed to investigate and present sufficient
background information to psychological experts in the context of both the guilt phase
and the penalty phase. See infra n. 12. We address Worthington’s argument that
counsel failed to call additional mitigation witnesses in Section II.B, infra.
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the AEDPA standard to review the merits of an intermediate state court decision. 498
F.3d at 783 (citing Ylst, 501 U.S. at 803-04). Indeed, other courts likewise have
employed AEDPA to review the merits of lower court decisions in the absence of a
reasoned affirmance by a state’s highest court. See Malone v. Clarke, 536 F.3d 54,
63 n.6 (1st Cir. 2008) (“The highest state court . . . summarily denied Malone’s habeas
claim, therefore, we ‘look through’ to ‘the last reasoned decision,’ which is the
decision of the Massachusetts Appeals Court.”) (citing Gunter v. Maloney, 291 F.3d
74, 80 (1st Cir. 2002)); Bond, 539 F.3d at 289 (reviewing the state trial court decision
where the state supreme court decision “did not add further reasoning than that
provided by the [postconviction trial court]”); Joseph v. Coyle, 469 F.3d 441, 450 (6th
Cir. 2006) (“[T]he decision we review is that of the last state court to issue a reasoned
opinion on the issue.”) (quotation marks omitted); Franklin v. Johnson, 290 F.3d
1223, 1233 n.3 (9th Cir. 2002) (where state appellate courts denied habeas petition
without comment, a federal habeas court “must look to the last reasoned decision of
the state court as the basis of the state court’s judgment”).

Applying the deferential AEDPA standard of review to his claim that counsel
performed ineffectively by failing to investigate and pursue mitigating psychological
evidence, we now consider whether Worthington is entitled to federal habeas relief.4
Because the postconviction trial court correctly identified Strickland as the controlling
authority for ineffective-assistance claims, we address whether the state court
unreasonably applied that precedent and whether the state court unreasonably
determined the facts in light of the evidence presented. Bucklew v. Luebbers, 436
F.3d 1010, 1016 (8th Cir. 2006); 28 U.S.C. § 2254(d). As discussed above, to prove
ineffective assistance of counsel, Worthington had to demonstrate both that counsel’s
performance was objectively deficient and that he was prejudiced by the deficient

4
Because the parties have briefed Worthington’s ineffective-assistance claim
under the AEDPA standard, we need not remand the claim to the district court. See
Scarberry v. Iowa, 430 F.3d 956, 958-59 (8th Cir. 2005).
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performance. See Strickland, 466 U.S. at 687. Failure to establish either Strickland
prong is fatal to an ineffective-assistance claim. Id. at 697.

The first prong of Strickland requires a showing that counsel’s performance fell
below an objective standard of reasonableness. Id. at 687-88. “[C]ounsel has a duty
to make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Id. at 691. Although in assessing the
reasonableness of counsel’s performance the Supreme Court has looked to sources
such as the ABA Capital Sentencing Guidelines, see, e.g., Rompilla, 545 U.S. at 387;
Wiggins, 539 U.S. at 524, “[n]o particular set of detailed rules for counsel’s conduct
can satisfactorily take account of the variety of circumstances faced by defense
counsel or the range of legitimate decisions regarding how best to represent a criminal
defendant,” Strickland, 466 U.S. at 688-89. The Court also has emphasized that
“hindsight is discounted by pegging adequacy to ‘counsel’s perspective at the time’
investigative decisions are made, and by giving a ‘heavy measure of deference to
counsel’s judgment.’” Rompilla, 545 U.S. at 381 (quoting Strickland, 466 U.S. at
689, 691). As a result, review of the state court’s determination that Worthington has
not proved an ineffective-assistance claim is “twice deferential: we apply a highly
deferential review to the state court decision; the state court, in turn, is highly
deferential to the judgments of trial counsel.” Link v. Luebbers, 469 F.3d 1197, 1202
(8th Cir. 2006) (quoting Nooner v. Norris, 402 F.3d 801, 808 (8th Cir. 2005)).

The second prong of Strickland—prejudice—requires a showing of a
reasonable probability that, but for counsel’s ineffectiveness, the result of the penalty
phase would have been more favorable to the defense. Strickland, 466 U.S. at 691.
Merely showing a conceivable effect is not enough; a reasonable probability is one
“sufficient to undermine confidence in the outcome.” Wiggins, 539 U.S. at 534
(quoting Strickland, 466 U.S. at 692).

Worthington relies heavily on three Supreme Court cases decided after
Strickland that have further defined the contours of counsel’s duty to investigate at the
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penalty phase: Williams v. Taylor, Wiggins v. Smith, and Rompilla v. Beard.5 In
Williams, the Court ordered habeas relief under AEDPA, concluding that counsel’s
performance fell well outside the bounds of effective assistance. 529 U.S. at 398-99.
Williams’s counsel “did not begin to prepare for th[e] [penalty] phase . . . until a week
before the trial,” id. at 395, and failed to introduce any evidence of Williams’s
exemplary prison behavior, his role in helping to break up a prison drug ring, or his
borderline mental retardation, id. at 396. Furthermore, counsel also neglected to
uncover extensive records describing Williams’s “nightmarish” childhood, “not
because of any strategic calculation but because they incorrectly thought that state law
barred access to such records.” Id. at 395.

The Court in Wiggins likewise held that counsel’s decision to limit the scope
of investigation—and their resulting failure to introduce any of Wiggins’s personal
history as mitigation evidence—was constitutionally deficient. 539 U.S. at 523. The
state court decision to the contrary, the Court held, “reflected an unreasonable

5
The Supreme Court also has addressed counsel’s duty to investigate in two
more recent cases, Porter v. McCollum, --- U.S. ---, 130 S. Ct. 447 (2009) (per
curiam), and Bobby v. Van Hook, --- U.S. ---, 130 S. Ct. 13 (2009) (per curiam).
Under AEDPA’s standard of review, however, our analysis is limited to “the law as
it was ‘clearly established’ by [Supreme Court] precedents at the time of the state
court’s decision.” Wiggins, 539 U.S. at 520. In any event, Porter and Van Hook have
not altered the scope of Strickland. The Court in Porter concluded that defense
counsel’s representation had been constitutionally deficient where counsel had “failed
to uncover and present any evidence of Porter’s mental health or mental impairment,
his family background, or his military service.” 130 S. Ct. at 453. In Van Hook, the
Court examined petitioner’s claim under the pre-AEDPA standard, 130 S. Ct. at 16,
and denied relief where petitioner’s trial counsel had communicated with his parents,
aunt, and family friend; consulted with two expert witnesses; and contacted the
Veterans Administration in an effort to obtain petitioner’s medical records, id. at 18.
Rejecting petitioner’s argument that trial counsel should have further investigated his
background, the Court concluded that “given all the evidence they unearthed from
those closest to Van Hook’s upbringing and the experts who reviewed his history, it
was not unreasonable for his counsel not to identify and interview every other living
family member or every therapist who once treated his parents.” Id. at 19.
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application of Strickland.” Id. at 528. Counsel had abandoned any form of mitigation
argument based on personal history after having acquired only the presentence
investigation report—which included a one-page account of Wiggins’s
background—and city social service records documenting his placements in the state
foster care system. Id. at 523. The Court determined that counsel’s failure to expand
their search “after having acquired only rudimentary knowledge of [Wiggins’s]
history from a narrow set of sources” fell below an objective standard of
reasonableness. Id. at 524 (citing ABA Guidelines). While “Strickland does not
require counsel to investigate every conceivable line of mitigating evidence no matter
how unlikely the effort would be to assist the defendant at sentencing,” id. at 533, the
Court concluded that counsel nonetheless had been ineffective. “‘[S]trategic choices
made after less than complete investigation are reasonable’ only to the extent that
‘reasonable professional judgments support the limitations on investigation.’” Id.
(quoting Strickland, 466 U.S. at 690-91).

Finally, in Rompilla, the petitioner argued that trial counsel had been
constitutionally ineffective at the penalty phase for failing to investigate his school
records, juvenile records, evidence of alcohol dependence, and—most
significantly—the court file of his previous conviction. 545 U.S. at 382-83. With
regard to the school and juvenile records and the alcoholism evidence, the Court
acknowledged that “there is room for debate about trial counsel’s obligation to follow
at least some of those potential lines of enquiry.” Id. at 383. “Reasonably diligent
counsel may draw a line when they have good reason to think further investigation
would be a waste.” Id. (citing Wiggins, 539 U.S. at 525; Burger v. Kemp, 483 U.S.
776, 794 (1987); Strickland, 466 U.S. at 699). However, the Court determined that
counsel had performed deficiently in failing to examine the easily accessible court file
on Rompilla’s prior conviction, id., because they were fully aware of the prosecution’s
plan to introduce evidence of the conviction at sentencing, id. at 389-90. Entries in
the file, the Court observed, “would have destroyed the benign conception of
Rompilla’s upbringing and mental capacity” that Rompilla’s trial counsel and mental
health experts had entertained. Id. at 391.
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 Here, Worthington argues that trial counsel was ineffective for failing to
investigate adequately his background and pursue a psychological mitigation strategy
based on expert testimony. Specifically, Worthington faults trial counsel’s failure to
interview family members and acquaintances, to procure his records from the Illinois
Department of Corrections, and to obtain the psychiatric and medical records of
Worthington’s mother, father, uncle, grandmother, and grandfather. This additional
history, he alleges, would have supported mitigating expert testimony regarding his
mental health. The state court concluded that trial counsel made a reasonable decision
not to pursue the mental-health strategy further and thus acted reasonably in not
pursuing further psychological evidence. Worthington, No. 00-12558, slip op. at 10,
11.

As we have noted, “counsel has a duty to conduct a reasonable investigation or
to make a reasonable determination that an investigation is unnecessary.” Link, 469
F.3d at 1203 (citing Sidebottom v. Delo, 46 F.3d 744, 752 (8th Cir. 1995)).
“Ordinarily, we consider strategic decisions to be virtually unchallengeable unless
they are based on deficient investigation.” Id. at 1204. Therefore, our analysis of
Worthington’s claim entails two inquiries: whether the state court reasonably decided
that counsel had conducted an adequate investigation, and whether the state court
reasonably decided that counsel’s resulting decision to refrain from further
investigating and presenting psychological mitigation evidence was reasonable.

Worthington’s claim rests heavily on his contention that attorney Joseph Green
performed an unreasonably cursory investigation before deciding against pursuing
further psychological evidence. In particular, Worthington asserts, Green’s testimony
demonstrates that he had no strategic reason not to further investigate Worthington’s
background and pursue further psychological evaluations. Green had been
“subcontracted” by attorney Scott Rosenblum to handle much of Worthington’s
penalty phase. During his post-conviction deposition, Green acknowledged that he
had not hired a mitigation specialist even though mitigation specialists usually are
employed in death penalty cases. He testified, though, that the records compiled by
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Dr. Givon during his 1996 examination (discussed further below) “were consistent
with the type of records that a mitigation specialist would have obtained.” Green
spoke to Worthington’s mother only briefly, but he found that she was preoccupied
with portraying herself as a good mother. He also contacted Carol Tegard,
Worthington’s aunt, who later testified as a mitigation witness during the penalty
phase. Despite having the names of other family members and acquaintances, Green
did not contact them or travel to Peoria, Illinois, Worthington’s home town.6 Green
also did not procure records other than those acquired by Dr. Givon.

While the extent of Green’s preparation for the penalty phase was not ideal, in
assessing the reasonableness of counsel’s performance, we cannot disregard the efforts
of attorney Rosenblum. See Bucklew, 436 F.3d at 1019 (“It is not deficient
performance for a team of attorneys to divide among them the workload of a case in
a rational and efficient manner.”). The record reflects that Rosenblum assumed the
role of undermining Dr. Givon’s testimony that Worthington was a malingerer and
had only antisocial personality disorder, not a mental disease or defect. Although,
based on the record, it is impossible to determine the level of Green’s involvement in
the relevant decision-making,7 it is clear that Rosenblum investigated the possibility
of a psychological mitigation argument at the penalty phase and made a reasoned
strategic determination not to pursue such an approach. Rosenblum’s testimony

6
At his post-conviction deposition, Green testified that “a boatload of reasons”
informed his decision not to travel to Peoria, including the fact that “time and expense
was not a luxury I had, keeping up my own private practice and what I was
getting paid . . . for on this case.”
7
Green testified that he was unaware that Rosenblum had retained Dr. Miller
until well after the sentencing hearing. Green also indicated, though, that he was not
responsible for the “logistics of hiring experts.” Rosenblum testified, however, that
“I know in my mind I discussed with Joe [Green] not only the fact I was talking to Dr.
Miller but that I talked to him about his findings.” The district court adopted Green’s
recollection without acknowledging Rosenblum’s competing testimony. See
Worthington, 619 F. Supp. 2d at 684 n.11.
-16-
establishes that he retained Dr. Miller, a psychiatrist, in early August 1998, initially
for the purpose of exploring the feasibility of a diminished-capacity defense at trial.
Dr. Miller met with Worthington twice, on August 6 and August 19. He also was
provided with police investigative reports and partial records of Worthington’s 10-day
psychiatric hospitalization at the Methodist Medical Center of Illinois in 1994, along
with Dr. Givon’s 1996 report. Dr. Givon also had interviewed Worthington twice and
had administered an MMPI-2 psychological test. As noted above, Dr. Givon’s report
diagnosed antisocial personality disorder, malingering, cocaine-dependence, and
alcohol abuse. In addition, the report summarized a substantial collection of records
regarding Worthington’s background and medical history, including a school
psychological evaluation performed at age fourteen; a 1989 psychological evaluation;
records from the Illinois Department of Corrections, Youth Division; a 1994 report
from White Oak Knolls Rehabilitation Center; records from Worthington’s
hospitalization at the Methodist Medical Center; and notes from two 1995 counseling
sessions. Rosenblum did not provide Dr. Miller with every record on which Dr.
Givon’s report was based, but he invited Dr. Miller to request the materials from Dr.
Givon directly. In his postconviction deposition, Rosenblum explained that he
adopted a similar approach in previous cases because Dr. Givon “provide[d] his
records generally pretty easily without much of a problem.” Dr. Miller never
requested further records from Rosenblum. Nor is there any indication that he
contacted Dr. Givon.

This case is not one “where the record is clear that no reasonable
attorney . . . would have failed to pursue further evidence.” Link, 469 F.3d at 1203.
Indeed, we have repeatedly observed that “[w]here counsel has obtained the assistance
of a qualified expert on the issue of the defendant’s sanity and nothing has happened
that should have alerted counsel to any reason why the expert’s advice was
inadequate, counsel has no obligation to shop for a better opinion.” Marcrum v.
Luebbers, 509 F.3d 489, 511 (8th Cir. 2007) (citing Sidebottom, 46 F.3d at 753); see
also Winfield, 460 F.3d at 1041. Cases in which the Supreme Court has held
counsel’s failure to investigate to be constitutionally ineffective involved a level of
-17-
deficiency absent from the present case. Counsel in Williams neglected to prepare for
the penalty phase until one week before the hearing and erroneously believed that state
law barred access to their client’s records. 529 U.S. at 395. Counsel in Wiggins based
their decision not to present any mitigating evidence solely on one page in a
presentence investigation report and a collection of social service records that
documented their client’s placement history in the foster care system. 539 U.S. at
524-25. And counsel in Rompilla failed to examine a readily available court file that
they knew the prosecution planned to introduce as evidence of aggravating factors.
545 U.S. at 389-90.

In light of Supreme Court precedent, then, we cannot say that the state court’s
determination that counsel conducted a reasonable investigation into psychological
mitigating evidence constituted an unreasonable application of clearly established
federal law. Counsel based the decision not to pursue a psychological mitigation
strategy on the opinions of two mental-health professionals—Drs. Givon and
Miller—each of whom had interviewed Worthington twice. Dr. Givon had reviewed
a substantial collection of records pertaining to Worthington’s social and medical
history. Likewise, Dr. Miller demonstrated significant familiarity with many of the
records documenting Worthington’s background. See State App. 494 (noting Dr.
Kessler’s report); id. (noting Dr. Legan’s report); id. (noting reports from the Illinois
Department of Correction, Youth Division); id. 494-95 (noting records of Dr. Ryall’s
sessions). Further, Dr. Miller was aware of the physical and sexual abuse that
Worthington suffered as a child. See id. 493. He also knew that Worthington’s
grandmother was chronically hospitalized for schizophrenia and that both of
Worthington’s parents had been in psychiatric hospitals and rehabilitation programs.
See id. 496. We cannot conclude, therefore, that the opinions of Drs. Givon and
Miller were so lacking in factual basis that the state court unreasonably concluded that
counsel had conducted an adequate investigation.8

8
We observe that the present case is plainly distinguishable from Antwine v.
Delo, 54 F.3d 1357 (8th Cir. 1995), where, conducting habeas review under the pre-
-18-
 Having determined that counsel reasonably investigated the potential for a
psychological mitigation strategy, we now examine the state court’s decision that
counsel reasonably decided against further investigating and presenting expert
psychological evidence at the penalty phase. Because Worthington has failed to show
that his attorneys’ investigation was deficient, there is “a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689; see also Rompilla, 545 U.S. at 390 (“Questioning a few
more family members and searching for old records can promise less than looking for
a needle in a haystack, when a lawyer truly has reason to doubt there is any needle
there.”). Rosenblum’s testimony demonstrates that counsel’s decisionmaking in this
case fell well within the bounds of reasonable trial strategy. After “a rather lengthy
[telephone] conversation” with Dr. Miller, Rosenblum decided against pursuing a
psychological mitigation strategy. Dr. Miller corroborated Dr. Givon’s diagnosis of
antisocial personality disorder, which Rosenblum considered “very damaging.”
Additionally, Rosenblum expressed concern that “[s]ome of [Worthington’s] self
reporting . . . was not consistent under hypnosis.” This inconsistency, he feared,
would undermine efforts to challenge Dr. Givon’s diagnosis of malingering, especially
in light of Dr. Miller’s inability to refute Dr. Givon’s conclusion. The beneficial
“nuggets” in Dr. Miller’s diagnoses were far outweighed by the “substantial negative
impact his testimony would have had.” For these reasons, counsel decided not to
present testimony regarding Worthington’s mental health at the penalty phase. Instead
counsel presented a meaningful mitigation case that focused on Worthington’s abusive
background and persuaded the sentencing court to find as mitigating factors his

AEDPA standard, this court held unreasonable an attorney’s decision to limit
investigation of petitioner’s mental condition. There, counsel based its decision solely
on the results of a cursory court-ordered mental examination. Id. at 1365. Although
the psychiatrist’s conclusions were facially inconsistent with available evidence,
counsel did not seek any further examination, instead employing “an emotional beg-
for-mercy approach” at the penalty phase hearing. Id. at 1367. Because “limiting the
investigation was not reasonable,” this court determined that “the subsequent strategic
choice” was similarly unreasonable. Id.
-19-
dysfunctional family life, his abuse and neglect as a child, and his history of drug
abuse. “Taking into account the leeway given to counsel under the Strickland
standard and that given to the state courts under 28 U.S.C. § 2254(d),” Marcrum, 509
F.3d at 501, we conclude that Worthington has not overcome the strong presumption
that counsel acted reasonably in deciding against pursuing an expert psychological
mitigation strategy, see Link, 469 F.3d at 1204.9 As a result, we reverse the district
court’s grant of habeas relief on this claim.

B. Worthington’s Cross-Appeal

Worthington first cross-appeals the district court’s rejection of his argument
that trial counsel performed ineffectively by failing to conduct an adequate
investigation and present further mitigating evidence through additional witnesses.
In particular, Worthington asserts that his parents—Patricia Washburn (“Patricia”) and
Richard Worthington (“Richard”)—would have testified about his troubled
upbringing. The Missouri Supreme Court held that counsel reasonably decided not
to present Patricia’s testimony because, when contacted, she had downplayed
Worthington’s traumatic childhood and endeavored “to portray herself as a good
mother.” Worthington, 166 S.W.3d at 578. The court also noted that counsel believed
that Patricia was under the influence of cocaine on the day she would have testified
at trial. Id. Therefore, the court concluded, “[i]t was not unreasonable for counsel to
make the strategic choice that it was better to use records of Mr. Worthington’s history
of abuse from Illinois than to call his mother at the trial.” Id. Turning to
Worthington’s father, the court determined that, even though counsel had not spoken
with Richard, their decision not to present his testimony was also reasonable.
According to the court, Worthington’s father was “difficult to locate” and “did not

9
Because we hold that the state court’s conclusion that Worthington failed to
satisfy the first prong of Strickland was not an unreasonable application of clearly
established federal law, we do not reach the second prong of the analysis—whether
the psychological evidence propounded by Worthington post-conviction had a
reasonable probability of altering the outcome.
-20-
have much of a relationship” with Worthington. Id. In any event, the court observed
that Carol Tegard—Worthington’s aunt—“was able to testify to much of the same
evidence that Mr. Worthington’s parents would have offered.” Id. Moreover, the
sentencing court reviewed numerous records detailing Worthington’s abusive
background. Id. For these reasons, the Missouri Supreme Court concluded, “offering
additional evidence of . . . abuse by calling Mr. Worthington’s parents was not
necessary nor was its absence prejudicial.” Id.

Applying AEDPA review,10 the district court upheld the state court conclusion
that counsel’s decision not to call Patricia was reasonable under Strickland.
Worthington, 619 F. Supp. 2d at 679. And while the district court disagreed with the
Missouri Supreme Court’s factual findings that Richard was difficult to locate and had
only a sporadic relationship with his son, it nevertheless determined that “[i]t was not
unreasonable for the Missouri Supreme Court to have concluded that Richard
Worthington’s testimony would have been cumulative, and petitioner was not
prejudiced.” Id.

With regard to his mother’s testimony, Worthington challenges the Missouri
Supreme Court’s determination that counsel reasonably decided against calling
Patricia as a witness. Worthington contends that the postconviction trial court did not
make “an explicit factual finding” that “counsel had a tactical basis for not calling
[Patricia] because her testimony might harm the defense.” Thus, asserts Worthington,
the Missouri Supreme Court’s conclusion that counsel made a reasonable strategic
decision was an unreasonable determination of the facts because it was “based upon
a non-existent factual finding.” See 18 U.S.C. § 2254(d)(2), (e)(1). As an initial
matter, we note that the postconviction trial court did, in fact, find that counsel’s
decision not to call Patricia was a reasonable decision based on her cocaine habit and

10
Unlike Warden Roper’s appeal, the parties agree that the AEDPA standard
of review governs the claims regarding Worthington’s parents and Charlotte Peroti’s
testimony.
-21-
her statements downplaying Worthington’s abusive childhood. See Worthington, No.
00-12558, slip op. at 11. Even had the Missouri Supreme Court based its decision on
findings of fact independent from those of the postconviction trial court, however, we
could not grant Worthington’s habeas petition absent a showing that those findings
were unreasonable. Section 2254(e)(1)’s “presumption of correctness applies to
factual determinations made by state courts, whether the court be a trial court or an
appellate court.” Perry v. Kemna, 356 F.3d 880, 883 (8th Cir. 2004) (internal
quotation marks omitted); see also Sumner v. Mata, 449 U.S. 539, 546-47 (1981).
The Missouri Supreme Court based its decision on the same factual findings noted by
the postconviction trial court, see Worthington, 166 S.W.2d at 578, and Worthington
has made no showing that those findings do not enjoy the support of the record.

With regard to the testimony of his father, Worthington argues that the district
court erred in upholding as reasonable the Missouri Supreme Court’s decision that
Worthington was not prejudiced by the absence of Richard’s testimony. Had Richard
testified, Worthington contends, the sentencing court would have gained a better
understanding of Worthington’s abusive background. We agree with the district
court, however, that the Missouri Supreme Court reasonably concluded that
Worthington suffered no prejudice, because Richard’s testimony would have been
cumulative of evidence already before the sentencing court. Worthington, 619
F. Supp. 2d at 679.

At the penalty phase, the sentencing court heard the testimony of Carol Tegard,
who described Worthington’s tormented childhood and youth. She testified about the
widespread drug and alcohol abuse that surrounded Worthington during his early
years, as well as his mother’s prostitution. Worthington and Patricia were “constantly
moving,” at one point living out of a car until Patricia sold it for drug money. Tegard
also testified that Patricia attempted suicide numerous times in Worthington’s
presence. Richard was a drug user and dealer who had minimal contact with the
family until Worthington’s adolescent years. When he did reenter Worthington’s life,
Tegard testified, Richard taught his son how to burglarize. According to Tegard,
-22-
Worthington underwent psychiatric treatment and checked into a drug rehabilitation
program, but his family members refused to be supportive.

In addition to Tegard’s testimony, numerous records before the sentencing court
described the severe neglect and abuse that Worthington suffered as a child. For
example, a 1989 psychological evaluation report described Worthington as having
grown up “in a dysfunctional chaotic family made up of his chronic alcoholic mother
and a heroin addicted father.” The report also noted “chronic neglect and emotional,
physical, and sexual abuse over the years.” Records from the Methodist Medical
Center of Illinois and the White Oaks Rehabilitation Center further described
Worthington’s chaotic upbringing, including his parents’ drug addiction and physical
abuse inflicted by a babysitter. Finally, the PSR provided numerous examples of
Worthington’s dysfunctional childhood, as well as detailing instances of physical and
sexual abuse.

Worthington discounts the value of the evidence before the sentencing court for
two reasons, neither of which is persuasive. First, he argues that Richard’s testimony
is not cumulative because the evidence before the sentencing court was “generic” and
“skeletal.” As described above, though, the state court’s decision to the contrary is
supported by the record. Tegard’s testimony, the documentary evidence, and the PSR
supplied a graphic and comprehensive account of Worthington’s background. This
stands in stark contrast to the evidence in the cases on which Worthington relies. See
Outten v. Kearney, 464 F.3d 401, 421 (3d Cir. 2006) (observing that trial counsel
failed to present any evidence of defendant’s sexual abuse, possible neurological
damage, or learning disabilities); Ainsworth v. Woodford, 268 F.3d 868, 874 (9th Cir.
2001) (determining that counsel adduced no substantive evidence in mitigation);
Lewis v. Johnson, 2000 WL 1568168, at *4 (5th Cir. Sept. 13, 2000) (noting that
single mitigation witness testified little more than that defendant “had a generally
unhappy childhood”), vacated in part, 2000 WL 35549205 (5th Cir. Dec. 21, 2000);
Collier v. Turpin, 177 F.3d 1184, 1201 (11th Cir. 1999) (observing that counsel

-23-
elicited only that defendant was a “hard worker” and had a reputation for
truthfulness).

Second, Worthington dismisses the records before the sentencing court because
“there is no evidence that the . . . court thoroughly reviewed any of these records
before issuing its sentencing verdict.” The penalty phase record belies Worthington’s
assertion, however. The sentence issued by the court was expressly “[b]ased on the
evidence presented to this Court.” Cf. Strickland, 466 U.S. at 695 (“[T]he assessment
of prejudice should proceed on the assumption that the decisionmaker is reasonably,
conscientiously, and impartially applying the standards that govern the decision.”).
Indeed, based on the mitigating evidence before it, the sentencing court found as non-
statutory mitigating circumstances that Worthington had a dysfunctional family, was
abused and neglected as a child, and was a long-term drug abuser. Thus,
Worthington’s assertion that the sentencing court failed to review the record is
meritless.

In light of Tegard’s testimony, the extensive documentary evidence, and the
PSR, we agree with the district court that the Missouri Supreme Court’s decision that
Worthington suffered no prejudice in the absence of his father’s testimony did not
unreasonably apply clearly established federal law. Nor was it based on an
unreasonable determination of the facts in light of the evidence presented in the state
court proceedings. The additional testimony “did not cover any new subject matter
and was not substantially more persuasive” than that actually presented, Eley v.
Bagley, 604 F.3d 958, 969 (6th Cir. 2010), and “would barely have altered the
sentencing profile presented” during the penalty phase, Strickland, 466 U.S. at 700.
Ultimately, much of what Worthington now claims should have been presented during
the penalty phase was, in fact, considered by sentencing court. Thus, because the
Missouri Supreme Court reasonably concluded that counsel’s decision not to present

-24-
the testimony of Worthington’s parents was not constitutionally ineffective,11 we
affirm the denial of habeas relief on that claim.12

Worthington also cross-appeals the district court’s denial of his claim that trial
counsel was constitutionally deficient for failing to investigate the background of
State witness Charlotte Peroti and object to her testimony on the grounds that the State

11
On appeal, Worthington also refers to unspecified “additional evidence of
[his] childhood and social history.” Although it is unclear whether Worthington is
referring to evidence beyond that of his parents, the district court interpreted the claim
to include “other family members and possibly former babysitters.” Worthington, 619
F. Supp. 2d at 678. Assuming, without deciding, that Worthington properly raised this
argument before both the district court and this court, we agree with the district court
that, even under de novo review, counsel’s failure to present testimony of his extended
family members and childhood babysitters did not prejudice Worthington because
such testimony also would be cumulative.
12
Worthington also argues that the district court erred by “artificially
truncating” his ineffective-assistance claim into two separate issues: whether counsel
was constitutionally ineffective for failing to pursue expert psychological testimony,
and whether counsel was constitutionally ineffective for failing to present additional
lay witness mitigation testimony. According to Worthington, in assessing prejudice
the district court should have balanced the aggravating evidence against the mitigating
evidence presented at the sentencing phase as well as the entire mitigating evidence
adduced post-conviction. To be sure, “it is necessary to consider all the relevant
evidence that the [factfinder] would have had before it if [counsel] had pursued the
different path.” Wong v. Belmontes, --- U.S.---, 130 S. Ct. 383, 386 (2009). But
because we earlier held that Worthington’s ineffective-assistance claim regarding
investigating and presenting psychological expert mitigation testimony did not amount
to constitutionally deficient representation, supra Section II.A, his “cumulative error
argument” is without merit, Becker v. Luebbers, 578 F.3d 907, 914 n.5 (8th Cir.
2009), cert. denied, 561 U.S. ---, 130 S. Ct. 3520 (2010); see also Wainwright v.
Lockhart, 80 F.3d 1226, 1233 (8th Cir. 1996). Worthington’s argument also fails
because cumulative testimony, by its very nature, adds nothing to the evidence
considered by the sentencing court. Consequently, the duplicative testimony of
Worthington’s parents would not have impacted the balance of mitigating and
aggravating evidence under any circumstances.
-25-
had failed to disclose her correct name and the substance of her testimony. Peroti
testified at the penalty phase that Worthington had broken into her house shortly
before he murdered Griffin and that he had attempted to sexually assault her. In
addition, Peroti testified that Worthington stole her car.

Although the State had endorsed Peroti as a witness more than two years before
the commencement of the penalty phase hearing, the State had not given the defense
notice of the subject matter of her testimony. As a result, on direct appeal the
Missouri Supreme Court determined that the State’s failure to notify the defense
violated State v. Debler, 856 S.W.2d 641 (Mo. banc 1993), which held that evidence
of uncharged misconduct is admissible during the penalty phase only if the State
provides advance notice to the defendant. Id. at 657; see also Worthington, 8 S.W.3d
at 90. However, because counsel had not objected to Peroti’s testimony, the Missouri
Supreme Court applied plain error review and denied relief, determining that
“manifest injustice” had not resulted from the error. 8 S.W.3d at 90. Worthington had
not been prejudiced by the Debler violation, the court maintained, because the dangers
against which Debler sought to guard were absent in Worthington’s case. Id. at 90-
91. In crafting its notice requirement, the court in Debler highlighted the risk that “the
average juror” would fail to differentiate between evidence of prior convictions and
“significantly less reliable” evidence of uncharged criminal activity. 856 S.W.2d at
657. In the present case, the fact that a judge—rather than a jury—had determined
Worthington’s sentence obviated the danger identified in Debler that an “average
juror” would give undue weight to Peroti’s testimony regarding the uncharged sexual
assault, burglary, and theft. Worthington, 8 S.W.3d at 90-91 & n.5. The Missouri
Supreme Court also found that, despite the Debler violation, “[d]efense counsel was
prepared to cross-examine [Peroti] on the details of her failure to report the burglary
and assault to police.” Id. at 91.

The Missouri Supreme Court likewise denied relief at the post-conviction stage,
holding that Worthington had not been prejudiced by counsel’s failure to object to
Peroti’s testimony and seek a continuance to investigate her allegations. Worthington,
-26-
166 S.W.3d at 580. The court found that “counsel knew all about the events to which
[Peroti] testified and cross-examined her effectively about them.” Id. at 581.
Worthington also pointed to evidence that Peroti had been convicted of passing bad
checks and that she had exaggerated her role as a police informant, arguing that had
trial counsel known of this evidence they could have impeached her more effectively.
The court acknowledged that counsel had been unaware of these facts but determined
that they nevertheless had forcefully challenged Peroti’s allegations by eliciting her
strong antipathy towards Worthington. Thus, the court concluded, “[t]here is no
reasonable probability that the minor additional impeachment value of showing that
she had a prior bad check conviction and that she may have exaggerated her role as
a police informant affected the outcome of the case.” Id.

Reviewing the Missouri Supreme Court decision under AEDPA, the district
court found the state court’s conclusion that counsel “knew all about” Peroti’s
allegations to be an unreasonable determination of the facts. Worthington, 619
F. Supp. 2d at 692-93. However, the district court concluded that the state court’s
decision was not based on this mistaken factual determination. Because counsel
effectively impeached Peroti’s testimony and established her bias during cross-
examination, the state court found that Worthington suffered no prejudice. Id. at 695
(“There is no reasonable probability that had the sentencing judge stricken her
testimony or allowed counsel additional time to investigate the alleged prior bad acts,
the outcome of the case would have been affected.”).

Worthington urges us to reverse the district court for two reasons. First, he
contends that the Missouri Supreme Court based its decision on an unreasonable
determination of the facts, which led to its conclusion that he suffered no prejudice
from counsel’s failure to object to the lack of adequate notice of Peroti’s testimony
and to seek a continuance to investigate her background. Specifically, Worthington
challenges the state court’s factual finding that defense counsel had effectively cross-
examined Peroti. See 18 U.S.C. § 2254(d)(2). “[A] state court decision involves ‘an
unreasonable determination of the facts in light of the evidence presented in state court
-27-
proceedings’ only if it is shown that the state court’s presumptively correct factual
findings do not enjoy support in the record.” Jones v. Luebbers, 359 F.3d 1005, 1011
(8th Cir. 2004) (citation omitted); 28 U.S.C. § 2254(e)(1) (“[A petitioner] shall have
the burden of rebutting the presumption of correctness by clear and convincing
evidence.”). Like the district court, we hold that the state court’s determination is
reasonable and supported by the record.

Worthington argues that had counsel sufficiently prepared to examine Peroti,
they would have been able to impeach her with evidence regarding her bad check
conviction and the fact that she allegedly had exaggerated her work as an undercover
drug informant. However, the state court found that counsel effectively cross-
examined Peroti without pursuing those avenues for impeachment, and we cannot say
that its finding is unreasonable under AEDPA. Even without prior knowledge of the
substance of Peroti’s testimony, counsel succeeded in establishing her bias against
Worthington. On cross-examination, Peroti acknowledged that she had volunteered
to work with the police “to try to get Michael Worthington arrested for drugs.”
Moreover, counsel elicited that Peroti wanted to “make sure [Worthington] got out of
[her] area” because he had supplied her son and other children with drugs and alcohol.
Peroti also admitted that she had never reported the alleged sexual assault to the police
and that she had continued to interact with Worthington after the assault. Likewise,
the PSR before the sentencing court detailed a police report that documented the
incident only as “Burglary 1st and Stealing Over $150,” further calling into question
Peroti’s testimony regarding the alleged sexual assault. Accordingly, we hold that
there is sufficient record evidence to support the state court finding that counsel
effectively cross-examined Peroti and that the court’s determination of fact is thus not
unreasonable in light of the evidence before it. We may not, therefore, upset the state
court’s determination that Worthington suffered no prejudice as a result of counsel’s
failure to investigate Peroti’s background.

Second, Worthington proffers an alternative ground for overturning the
Missouri Supreme Court’s decision that he was not prejudiced by counsel’s failure to
-28-
object to Peroti’s testimony under Debler. Had counsel objected, Worthington
contends, Peroti’s testimony likely would have been excluded in its entirety, thus
giving rise to a reasonable probability that the sentencing court would not have
imposed the death penalty. As an initial matter, the Missouri Supreme Court has
consistently maintained that Debler’s notice requirement only “slightly
circumscribe[s]” the “wide latitude” that both the State and the defense enjoy at the
penalty phase “to introduce any evidence regarding the defendant’s character that
assists the jury in determining the appropriate punishment.” State v. Smith, 32 S.W.3d
532, 554 (Mo. banc. 2000) (citation omitted); see also State v. Thompson, 985 S.W.2d
779, 792 (Mo. banc 1999); State v. Clay, 975 S.W.2d 121, 132 (Mo. banc. 1998).
Against this default principle that “the decision-maker is entitled to any evidence that
assists in” the penalty determination, Debler, 856 S.W.2d at 656, we think it likely
that, especially in the absence of a jury, the sentencing court would have simply
granted a brief continuance to allow counsel to investigate Peroti, rather than exclude
her testimony entirely. See State v. Parker, 886 S.W.2d 908, 917 (Mo. banc 1994)
(observing, in the context of the State’s alleged failure to timely disclose evidence
under Missouri Supreme Court Rule 25.03, that “the proper remedy was
continuance”); State v. Brass, 781 S.W.2d 565, 566 (Mo. Ct. App. 1989) (“Once
surprise has occurred, the proper remedy is to request a continuance or
postponement.”). Moreover, because we earlier upheld the state court’s determination
that further investigation of Peroti’s allegations would not have altered the result of
the penalty phase, we reiterate that counsel’s failure to secure a continuance did not
prejudice Worthington.

Nevertheless, even considering the unlikely possibility that the trial court would
have ordered the wholesale exclusion of Peroti’s testimony, we agree with the district
court that there was no reasonable probability that the sentencing court would have
imposed a sentence of life imprisonment. See Wiggins, 539 U.S. at 534. Despite
Worthington’s assertion to the contrary, Peroti’s testimony does not appear to be “the
most damaging aggravating evidence” presented at the penalty phase. As we
discussed above, Missouri courts have repeatedly acknowledged that evidence of
-29-
uncharged criminal misconduct is potentially unreliable. Debler, 856 S.W.2d at 657
(“Because no jury or judge has previously determined a defendant’s guilt for
uncharged criminal activity, such evidence is significantly less reliable than evidence
related to prior convictions.”); Smith, 32 S.W.3d at 554; Thompson, 985 S.W.2d at
792; see also Strickland, 466 U.S. at 695 (“[T]he assessment of prejudice should
proceed on the assumption that the decisionmaker is reasonably, conscientiously, and
impartially applying the standards that govern the decision.”). Indeed, the sentencing
court made no mention of the alleged sexual assault when it issued the penalty.
Rather the court pointed to only two statutory aggravating factors, neither of which
implicated Peroti’s testimony. The sentencing court subsequently filed a “Report of
the Trial Judge” listing three nonstatutory aggravating circumstances, none of which
included Peroti’s allegations of uncharged sexual assault, burglary, and theft.
Accordingly, the strictures of AEDPA review do not permit us to disturb the state
court decision that Worthington suffered no prejudice as a result of counsel’s failure
to object to the lack of adequate notice of Peroti’s testimony.13 We affirm the denial
of habeas relief on this ground.

13
Worthington also raises a perfunctory argument that, had the sentencing court
improperly admitted Peroti’s testimony over a timely Debler objection, there is a
reasonable likelihood that his sentence would have been overturned on direct appeal.
Because this theory was not raised before the district court—or even the state
courts—we decline to address it. Whitmore v. Avery, 26 F.3d 1426, 1429 (8th Cir.
1994), vacated on other grounds, 513 U.S. 1141 (1995); see also Cummings v.
Norton, 393 F.3d 1186, 1190 (10th Cir. 2005) (“In order to preserve the integrity of
the appellate structure, we should not be considered a ‘second-shot’ forum, a forum
where secondary, back-up theories may be mounted for the first time.”) (quoting Tele-
Comm’ns, Inc. v. Comm’r, 104 F.3d 1229, 1232-33 (10th Cir. 1997)). In any event,
this theory of prejudice is meritless because “it is difficult to base reversible error on
the erroneous admission of evidence in a court-tried case.” Worthington, 166 S.W.3d
at 573 (quoting Blackburn v. Richardson, 849 S.W.2d 281, 291 (Mo. Ct. App. 1993)).
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III. CONCLUSION

For the foregoing reasons, we reverse the district court’s grant of Worthington’s
petition for writ of habeas corpus, and we affirm its judgment denying habeas relief
on the two grounds for which Worthington was granted a certificate of appealability.
On remand, we instruct the district court to enter an order denying Worthington’s
petition.
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