1

The Honorable Catherine D. Perry, Chief Judge, United States District Court

for the Eastern District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-1213

___________

Andre Cole, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Missouri.

Donald P. Roper; *

Jeremiah W. Nixon, *

*

Appellees. *

___________

Submitted: April 12, 2010

Filed: November 5, 2010 (Corrected 11/9/2010)

___________

Before BYE, BEAM, and GRUENDER, Circuit Judges.

___________

BEAM, Circuit Judge.

Andre Cole appeals the district court's denial of his 28 U.S.C. § 2254 petition

for habeas corpus. The district court1

 certified nine claims for appeal, and upon

review of these claims, we affirm the denial of relief.
2

This object was variously referred to as either a "jack" or a "tire iron" or a

"wrench" during trial. At one point a police detective described it as a "scissor jack."

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I. BACKGROUND

The evidence at Cole's trial in Missouri state court in 2001 reveals that Cole and

his wife, Terri, divorced in 1995 after eleven years of marriage. Cole was ordered to

pay child support for the care of the couple's two children, but his periodic failure to

make payments resulted in an arrearage of nearly $3,000. The record indicates that

Cole and Terri also had disputes involving visitation with the children, and in August

1998, Cole was upset about his alleged lack of visitation with his two sons. There is

also evidence he was upset about his wages being garnished to cover the child support

arrearage. On the evening of August 21, 1998, Cole forced his way into Terri's house

by throwing a tire iron2

 through a glass door leading to the dining room from the patio.

Anthony Curtis, who was visiting Terri, confronted Cole and asked him to leave. Cole

stabbed and slashed Curtis more than twenty times, the fatal blow being an eight-inch

deep knife wound to Curtis's back. Cole then assaulted Terri, stabbing her repeatedly

in the stomach, breasts, back, arms, and her hands when she attempted to defend

herself. Terri survived and testified at trial. After the attack, Cole fled the state but

after a little over a month, returned to St. Louis and surrendered to the police. DNA

analysis confirmed the presence of both victims' blood on the knife and the presence

of Cole's blood on the deck of Terri's home, the backyard fence, and in the street

where Cole's car had been parked. At trial, Cole presented the theory that, although

he did break into Terri's home with the jack, he did not bring a weapon, and actually

was attacked by a knife-wielding Curtis, who was much larger than Cole. Cole's

testimony at trial also insinuated that Terri delivered the fatal wounds to Curtis in an

attempt to keep Curtis from attacking Cole.

A jury in St. Louis County, Missouri, convicted Cole of first-degree murder,

first-degree assault, first-degree burglary, and two counts of armed criminal action.
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He was sentenced to death for Curtis's murder and given three life terms of

imprisonment for the assault and armed criminal action and thirty years for the

burglary. The Missouri Supreme Court upheld Cole's convictions and sentences on

direct appeal. State v. Cole, 71 S.W.3d 163 (Mo. 2002) (Cole I). Cole's Rule 29.15

motion for postconviction relief, in which he raised numerous claims of ineffective

assistance of counsel, was also denied by the trial court, and the denial was affirmed

on appeal. Cole v. State, 152 S.W.3d 267 (Mo. 2004) (Cole II). 

In his timely petition for habeas corpus relief, Cole raised numerous claims.

The district court denied the petition, without an evidentiary hearing, and the

following claims are certified for appeal: (1) a Batson claim regarding black

veniremember Vernard Chambers, who was struck by the prosecution (Claim 4); (2)

claims for ineffective assistance of counsel based on counsel's failure to investigate

Cole's social and medical history, specifically on the days leading up to the crime

(Claims 10 and 11); (3) a claim for ineffective assistance of counsel based upon

counsel's failure to present evidence during the penalty phase about Cole's exemplary

prison conduct while awaiting trial (Claim 12); (4) due process claims based upon

Cole's allegedly visible leg restraint during the guilt and penalty phase trials (Claims

7 and 16); (5) claims for prosecutorial misconduct during closing argument in both the

guilt and penalty phase (Claims 2 and 13); and (6) the cumulative effect of the

foregoing errors (Claim 20).

II. DISCUSSION

In this habeas corpus action, we review the district court's conclusions of law

de novo and its factual findings for clear error. McGehee v. Norris, 588 F.3d 1185,

1193 (8th Cir. 2009). Under the Antiterrorism and Effective Death Penalty Act of

1996 ("AEDPA"), we may not grant relief for claims adjudicated on the merits by the

Missouri state courts unless the adjudication was contrary to, or involved an

unreasonable application of, federal law as determined by the Supreme Court, or was
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an unreasonable determination of the facts in light of the evidence presented in state

court. 28 U.S.C. § 2254(d). A state court decision may be incorrect, yet still not

unreasonable, and we will grant relief only if the state court decision is both incorrect

and unreasonable. McGehee, 588 F.3d at 1193. Further, "a determination of a factual

issue made by a State court shall be presumed to be correct" in a federal habeas

proceeding. 28 U.S.C. § 2254(e)(1).

A. Claim 4: Striking of Veniremember Chambers

Cole argues that the prosecutor's use of a peremptory challenge to strike

veniremember Chambers from the jury violated Batson v. Kentucky, 476 U.S. 79

(1986). During Cole's trial, after defense counsel made the Batson challenge to the

strike of veniremember Chambers, the prosecutor offered the following reasons for

why the strike was race-neutral:

[t]he State's primary concern with Mr. Chambers is that he is divorced.

And because of the facts and the dynamics of [sic] case–the record

should reflect the State expects that the evidence that's introduced will

show that Mr. Cole was divorced from his wife Terri Cole. There was a

great deal of animosity between the two of them. I'm concerned that

someone who is similarly situated to Mr. Cole in that he's divorced may

be sympathetic to Mr. Cole and may not be sympathetic to Terri Cole,

the victim in this case. . . . In addition to that, Your Honor, with regard

to the death penalty he stated that he was not opposed to the death

penalty, but not sure if he could do it or not. Furthermore, he has a

cousin doing life in prison for a murder in Michigan.

Trial Transcript (Tr.) at 569-70. Defense counsel responded that there was a white

male paying child support and a different white male who was never married, neither

of whom was struck by the state. She also generally objected to Chambers being
3

Though not pressed by Cole's counsel during voir dire, on direct appeal he

alleged that a white venireperson not struck by the prosecution, Shirley Parsons, was

similarly situated to Chambers because she had a nephew serving time in prison for

manslaughter. The Missouri Supreme Court found that Parsons and Chambers were

not similarly situated. Cole I, 71 S.W.3d at 173.

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struck on the basis of his divorced status.3

 The trial court summarily found the state's

reasons race-neutral and denied the defense's Batson challenge. 

The Missouri Supreme Court adjudicated this claim on the merits and found

that the prosecutor's reasons were race-neutral, not pretextual and noted that the

"similarly situated" jurors proposed by the defense were not actually divorced, but one

was simply subject to a child support order, though not married. The court concluded

that these comparison jurors were not similarly situated and that Chambers' status as

divorced, his somewhat equivocal answers about the death penalty, and having a

cousin with a murder conviction were all reasons for the prosecution's use of the strike

that did not violate Batson. Cole I, 71 S.W.3d at 173.

In Batson, the Court held that the Equal Protection Clause of the United States

Constitution prohibits the use of peremptory challenges to exclude jurors on the basis

of race. Batson, 476 U.S. at 89. The Court uses a three-step process for evaluating

whether the use of a peremptory challenge was based on purposeful discrimination.

First, the defendant must make a prima facie case of racial discrimination. Second,

after such showing is made, the state must suggest a race-neutral explanation for the

use of the strike. Third, after a race-neutral reason is offered, the trial court must

decide whether the defendant has shown purposeful discrimination. Snyder v.

Louisiana, 552 U.S. 472, 476-77 (2008). Within this framework, the defendant may

rely on "all of the circumstances that bear upon the issue of racial animosity" to show

purposeful discrimination. Id. at 478. Whether a peremptory strike was motivated by

race is ultimately a question of fact, Miller-El v. Dretke, 545 U.S. 231, 240 (2005),

and a state court finding is accorded a presumption of correctness under AEDPA, 28
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U.S.C. § 2254(e)(1). Thus, a Missouri state court's determination regarding the

prosecution's intent may be set aside only if Cole rebuts "the presumption of

correctness by clear and convincing evidence." Id.

Cole complains that the trial court did not make proper findings or do an

adequate Batson evaluation by simply saying the reasons were race-neutral without

saying they were "true." His argument, as we understand it, is essentially that the trial

court did not complete step three of the Batson analysis. He also argues that the state

court adjudications violate the recent Supreme Court pronouncements in Snyder.

While the trial court's Batson analysis may have been lacking, in addition to

considering (and giving deference to) the trial court's Batson's findings, we also must

consider the Missouri Supreme Court's analysis. Smulls v. Roper, 535 F.3d 853, 862

(8th Cir. 2008), cert. denied, 129 S. Ct. 1905 (2009).

We find that the Missouri Supreme Court's analysis of Cole's Batson claim was

not contrary to, nor an unreasonable application of, Supreme Court precedent. Its

factual findings regarding the three proffered similarly situated jurors are accorded a

presumption of correctness. As is the Missouri Supreme Court's finding that, given

the marital status issue, Chambers' equivocation about the death penalty, and having

a cousin serving time for a murder conviction, the prosecutor's reasons for striking

Chambers were not race-based. Cole's arguments to the contrary, while wellpresented, are not clear and convincing evidence that entitles him to overcome these

presumptively correct findings.

Furthermore, Cole cannot argue that the trial court or the Missouri Supreme

Court unreasonably applied either Miller-El or Snyder, because neither had been

decided at the time the state courts adjudicated his Batson issue. See Thaler v.

Haynes, 130 S. Ct. 1171, 1174 n.2 (2010) (per curiam). To the extent Cole simply

argues that Snyder and Miller-El are factually and legally persuasive reasons why

Batson was unreasonably applied in this case, we disagree. In Snyder, the petitioner

challenged the strike of two black jurors during his state court prosecution for capital
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murder. The prosecutor's reasons for striking the first juror were that he looked

"nervous" during voir dire and that his school and work obligations were arduous

because he was a student teacher. The trial court allowed the strike without

discussion. In reversing the denial of habeas corpus relief, the Court refused to

presume that the trial court credited the prosecutor's representation that he struck the

challenged juror based on the juror's demeanor because the trial court had made no

factual findings concerning the demeanor. 552 U.S. at 479. 

In Miller-El, prosecutors "shuffled" the jury at least twice and offered no

explanation to rebut the defendant's evidence that this was done to limit the number

of black persons on the jury. 545 U.S. at 265. Ten of the eleven qualified black

persons were peremptorily struck; two of those who were allegedly struck for being

hesitant about applying the death penalty actually gave answers that an unbiased

prosecutor seeking the death penalty would have readily accepted. Id. Most of the

blacks were subject to questions and scripts designed to elicit answers that non-blacks

generally were not. Id. at 265-66. The egregious facts present in Miller-El were not

present during Cole's trial. We have no evidence that there was jury shuffling, and a

review of the record indicates that no different forms of questioning were posed to the

black and non-black members of the jury pool. Snyder involved a demeanor-based

challenge, which was not at issue in this case. There was no unreasonable application

of Batson by the Missouri state courts, and neither Miller-El nor Snyder changes that

result. The district court properly denied relief based upon this claim.

B. Claims 10 and 11: Ineffective Assistance of Counsel: Failure to

Investigate Cole's Mental and Emotional Disturbance

In Claim 10, Cole argues that trial counsel failed to investigate and present

evidence that he suffered from an extreme mental and emotional disturbance at the

time of the crime. In Claim 11, Cole relatedly argues that counsel erred by failing to

investigate and present evidence from lay witnesses on his troubled state of mind

around the time of the offense.
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A claim of ineffective assistance of counsel is governed by the performance and

prejudice standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under

the performance prong, the court must apply an objective standard and "determine

whether, in light of all the circumstances, the identified acts or omissions were outside

the wide range of professionally competent assistance," id. at 690, while at the same

time refraining from engaging in hindsight or second-guessing of trial counsel's

strategic decisions. Id. at 689. If performance was deficient, the prejudice prong

requires proof "that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different." Id. at

694.

Although Cole had undergone two pretrial psychiatric evaluations by mental

health experts, he argues that counsel should have had him evaluated by a third expert

to develop mitigation evidence for the penalty phase. At Cole's state postconviction

hearing a forensic psychiatrist opined that Cole was suffering from an "extreme

emotional distress" at the time of the offense.

The Missouri Supreme Court adjudicated this claim on the merits and found

that counsel was not deficient because both pretrial experts who examined Cole

concluded that he was not suffering from any mental disease or defect at the time of

the crime. There was no evidence that Cole was suffering from depression, paranoia

or delusional beliefs. His thought processes were found to be logical and sequential,

and he was determined to be capable of knowing and appreciating the nature, quality

and wrongfulness of his conduct. Accordingly, the court found that counsel was not

deficient for failing to shop for a more favorable expert. Cole II, 152 S.W.3d at 270.

Further, the court found that lay witness testimony may have been more harmful than

helpful. Id.

This adjudication was not an unreasonable application of, nor was it contrary

to, Strickland. Cole's trial counsel testified at the postconviction hearing about the

avenues she investigated concerning Cole's background. She met with Cole's mother
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and sister routinely and questioned them about medical conditions, a family history

of mental illness or alcohol abuse, and Cole's use of alcohol and drugs. Cole informed

her that he had not been treated for mental disease or defect and denied that he was

depressed. He admitted to drinking two beers on the night of the crime but he denied

being drunk or on any drugs at the time of the offense, and he denied having an

alcohol problem. This was enough of an investigation to clear Strickland's

performance prong. See, e.g., Forsyth v. Ault, 537 F.3d 887, 892 (8th Cir. 2008)

(holding that the Sixth Amendment does not require favorable expert "shopping" for

adequate performance), cert. denied, Forsyth v. Burt, 129 S. Ct. 1044 (2009). And

with the strong expert testimony already in the hands of the state at the time of trial,

it is unlikely that Cole suffered any prejudice from the failure to call more favorable

expert or lay witnesses, even if performance was lacking. See id. (noting that, given

the weight of psychiatric opinion on petitioner's competence, the proffered

postconviction expert's opinion was unlikely to have had an effect on the outcome of

the proceeding). The district court did not err in rejecting these two points.

C. Claim 12: Ineffective Assistance of Counsel: Failing to Investigate

and Present Evidence Regarding Cole's Exemplary Prison Conduct

Cole argues that his trial counsel performed deficiently during the penalty phase

by failing to investigate and present evidence of Cole's good prison conduct. The

Missouri Supreme Court rejected this claim, citing trial counsel's testimony at the Rule

29.15 motion hearing that "her experience with presenting evidence on a defendant's

good behavior in jail was generally ineffective," and by stating that the testimony of

jail witnesses would have overlapped other good character evidence that was

presented at the sentencing. Cole II, 152 S.W.3d at 269-70.

The three witnesses Cole argues should have been investigated and presented

by his counsel were two jail employees, and a nun who ran the jail religious services,

Sister Judith Klump. One prison employee allegedly would have testified that Cole

was an ideal inmate who followed rules, was mild mannered, and an excellent worker.
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The other apparently would have testified that Cole was an exceptional worker with

no discipline problems. Sister Klump met Cole through the religious classes that she

taught at the jail. She now claims she would have testified that she often asked Cole

to start her class with a prayer because he spoke from the heart, and that Cole was a

polite class leader who was respected among the inmates.

The Missouri Supreme Court's opinion rejecting this claim was not contrary to,

nor an unreasonable application of, Strickland. We may not second-guess counsel's

reasonable strategic decisions. Strickland, 466 U.S. at 690 (describing informed

strategic choices as "virtually unchallengeable"). And counsel did, in fact, put on

good character evidence during the penalty phase of Cole's trial, including Cole's

family members, friends, and his church pastor. At the postconviction hearing,

counsel testified that she interviewed correctional officers at the jail but learned of no

potentially relevant testimony. Counsel admitted that she did not investigate any

potential witnesses regarding Cole's attendance at religious services and Bible study

groups while he was incarcerated and that she was unaware he attended such services

in jail. Counsel's primary concern was that Cole had a prior conviction for failure to

return to confinement, and that might be a negative issue if she put jail employees on

the stand. She felt that a reminder of the prior conviction would outweigh any good

character evidence a jail employee could provide.

Cole argues the Missouri court's adjudication of this issue was contrary to or

an unreasonable application of Skipper v. South Carolina, 476 U.S. 1 (1986). In

Skipper, the Court held that evidence of a "defendant's disposition to make a

well-behaved and peaceful adjustment to life in prison" is relevant mitigating

evidence. Id. at 7. However, while Skipper held that such evidence is relevant and

admissible, the failure to put on this evidence does not make counsel's performance

deficient. And under our doubly deferential standard of review, it does not mean that

the Missouri Supreme Court unreasonably applied Strickland. The district court did

not err in denying this point.
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D. Claims 7 and 16: Visible Restraint

Cole asserts that the leg brace restraint he was required to wear during his trial

was visible to the jurors and that this violated his due process rights, as stated in Deck

v. Missouri, 544 U.S. 622, 630-32 (2005) (holding that visibly shackling a defendant

during the penalty phase of a capital trial without a justifiable state interest violates

due process). Claim 7 pertains to the effect of the restraint on the guilt phase of the

trial and Claim 16 pertains to its effect on the sentencing phase. The state argues that

Cole has defaulted these claims because they were not raised in either his direct appeal

or his postconviction motion, but that even if not defaulted, Cole's claims would fail

because the leg restraint was not visible and thereby did not violate Deck. Cole argues

that these claims are not procedurally defaulted because he raised them in a motion

to recall the mandate, shortly after Deck was decided, and that the claim was raised

as soon as possible under Deck. The district court agreed that the Deck claim was not

procedurally defaulted because it was raised in the motion to recall the mandate.

Cole's 29.15 motion was denied in November 2004, and Deck was decided by the

Supreme Court in May 2005. Cole filed his motion to recall the mandate based upon

Deck in August 2005, and the Missouri Supreme Court summarily denied this motion

later in August 2005. 

As noted, Claim 16 involves the restraint during penalty phase issue, and the

basis for this claim would not have been available before Deck was decided. But

Claim 7 is based upon unjustified restraint during the guilt phase, which has been

unconstitutional since 1986 when the Supreme Court decided Holbrook v. Flynn, 475

U.S. 560, 567-68 (1986). Cole failed to preserve this claim for review by the state

courts, and advances no arguments with regard to cause for or prejudice from the

procedural default of this claim. Accordingly, Claim 7 is defaulted. Claim 16 is not
4

The State of Missouri has previously allowed a defendant to bring a motion to

recall the mandate to raise a new constitutional claim. In State v. Whitfield, 107

S.W.3d 253, 265, 268 (Mo. 2003), the Missouri Supreme Court allowed a defendant

to bring a new claim in a motion to recall the mandate when his capital sentencing

violated the Sixth Amendment principles announced in Ring v. Arizona, 536 U.S. 584,

609 (2002). The Whitfield defendant's 29.15 motion had been finally decided prior

to Ring, and following Whitfield's motion, the court recalled its mandate and imposed

a life sentence. 107 S.W.3d at 270-72. Further, in Nave v. Delo, 62 F.3d 1024, 1032

(8th Cir. 1995), we recognized that in Missouri, a motion to recall the mandate may

be employed when a decision of a lower court "is contradicted by subsequent

developments in the law."

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defaulted, however, because Cole raised the issue to the state courts as soon as the

claim became legally viable (following Deck) in a motion to recall the mandate.4

The district court treated Claim 16 as though it had been adjudicated on the

merits by the Missouri Supreme Court's summary denial of the motion to recall the

mandate, accorded the decision AEDPA deference, and found that there was no

unreasonable application of Deck because the restraint here–a knee immobilizer worn

under Cole's pants–was far less visible and obtrusive than those employed in Deck.

Cole alleges that the restraint (even though worn under his pants) was visible from the

bottom of his pants. He also submitted statements from a juror who "remembered"

that Cole was shackled, and another from a juror who thought Cole was handcuffed

during trial (which he clearly was not), as well as from family members who opined

that the restraint was visible during trial. The district court refused to grant an

evidentiary hearing on the issue, dismissed the credibility of the juror statements as

the product of faulty memory, and denied the claim. 

Cole asserts that at the very least, he was entitled to an evidentiary hearing on

this claim. We review the district court's decision denying an evidentiary hearing for

an abuse of discretion. Osborne v. Purkett, 411 F.3d 911, 915 (8th Cir. 2005). The

AEDPA dictates that an evidentiary hearing may only be held in extremely limited
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circumstances when the factual basis for a claim was not developed in state court. 28

U.S.C. § 2254(e)(2). However, an evidentiary hearing may also be held when the

claim is based upon a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court. Id. § 2254(e)(2)(A).

While Cole arguably relies upon a "new rule of constitutional law" as set forth

in Deck, the Supreme Court has not made Deck retroactive to cases on collateral

review. Deck itself was a direct appeal from a Missouri conviction. We can find no

Supreme Court case making Deck retrospective. Cf. In re Rutherford, 437 F.3d 1125,

1128 (11th Cir. 2006) (holding that Deck is not retroactive for purposes of § 2244's

general prohibition on successive habeas corpus petitions). Accordingly, because

Cole's claim is not based upon a new retroactive constitutional rule, the district court

did not abuse its discretion in refusing to hold an evidentiary hearing on this claim.

Nor did the district court err in refusing to grant relief on the merits of this

claim. Deck cannot be the basis for a Missouri court violation of clearly established

Supreme Court precedent because it was not decided until after Cole's conviction

became final. See Williams v. Norris, 612 F.3d 941, 958 (8th Cir. 2010) ("Williams

cannot claim any relief from Deck, because Deck post-dated his trial and the

principles articulated therein were not clearly established at that time."). And even

considering the merits, our review of the record indicates that Cole was not

unconstitutionally shackled within the meaning of Deck. The record indicates that

Cole's counsel was not even aware that Cole was restrained, as she thought he was

wearing a knee brace because his knee was bothering him. In that regard, the

following discussion took place on the record, out of the presence of the jury:

[Cole's Counsel]: This morning, Your Honor, January 15th, I had asked

the Court to consider having Mr. Cole's brace taken off of his–either I

think it's [sic] left leg. I'm not sure. He had it on last week. And I

misunderstood what he was saying. I thought he was [sic] said he was

wearing it because his knee was bothering him so I didn't bring this to
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the Court's attention before I asked the Court this morning and you asked

the Department of Justice Services the reason for that.

[Court]: They basically said it was their administrative policy on death

penalty cases to implement the leg brace or install the leg brace on the

Defendant in these kind of cases where he's in custody. So, if I believe

that it may affect his ability in this case to effectively assist his attorney

in this case, then I will reconsider that.

[Counsel]: I don't think it will. I think it's uncomfortable. My thought

was at first it was because he had to have it on.

Tr. at 1188. Defense counsel and the trial judge spoke further about the fact

that Cole was not too uncomfortable to assist in his own defense, and counsel also

requested, and was promised, a recess before Cole testified so that the jury would not

see him uncomfortably walking to the witness stand. The record reflects that when

the jury was brought in for Cole's testimony, he was already seated at the witness

stand.

Considering that his own attorney was unaware that Cole was restrained, it is

extremely unlikely that the jury was aware of it. Deck proscribes the routine use of

"visible shackles" during the penalty phase of a capital trial. 544 U.S. at 632.

Because Cole was not subject to "visible shackles," the district court properly denied

relief on Claim 16.

E. Claims 2 and 13: Prosecutorial Misconduct

Cole contends that statements made by the prosecutor in closing argument,

during both the guilt phase (Claim 2) and the penalty phase (Claim 13), were

prejudicial to him and made his trial fundamentally unfair. In the guilt phase

arguments, Cole objects to the prosecutor: personalizing the evidence by saying, "I

can't emphasize enough to you the seriousness of this case nor can I emphasize

enough to you the strength of the State's case;" accusing Cole of sneaking and
5

At the time of trial, Terri had been diagnosed with amyotrophic lateral sclerosis

(also known as "Lou Gehrig's Disease"), completely unrelated to the incident that

resulted in Curtis's death. The record reflects that the effects of the disease had begun

to physically affect Terri, and the jury was aware of the diagnosis.

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creeping around at night and terrorizing Terri; eviscerating Cole's presumption of

innocence by stating that defendants are usually "sitting in that chair . . . for a reason;"

calling Cole a "convicted killer;" telling the jury that they can send a message "to the

victims of crime, families in St. Louis County, that you can come to the court house

and get justice;" and unfairly appealing to the jury's sympathies by reminding them

that Terri was a "dying woman."5

 Tr. at 1415-21, 1474-80. In the penalty phase, Cole

objects to the prosecutor analogizing the jury to "patriots" who needed to step up to

protect society; again reminding jurors that "verdicts do send messages;" and opining

that the "death penalty is a weapon we need to have in our arsenal to fight crime." Tr.

at 1653-54.

None of these statements were objected to by trial counsel. After noting that

none of these claims were preserved for direct appeal by a timely objection at trial, the

Missouri Supreme Court reviewed for plain error and summarily rejected the majority

of Cole's claims. Cole I, 71 S.W.3d at 170. The state court discussed the merits of

only one prosecutorial argument (the "convicted killer" comment), but still found no

error of law. In adjudicating the claim, the court found that the prosecutor had

repeatedly referred to Cole as a "convicted felon" during argument, and found the

"convicted killer" remark to be a single inadvertent remark which did not prejudice

Cole because the jury had already been presented with the precise nature of his actual

prior convictions, none of which involved a homicide. Id. The court also found that

"[s]tatements made in closing argument will rarely amount to plain error." Id. at 171.

Although we agree that the "convicted killer" comment was clearly improper

and several of the other statements were unnecessarily close to the line, the Missouri

Supreme Court's adjudication of this claim was not an unreasonable application of, or
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contrary to, clearly established Supreme Court precedent. The watershed Supreme

Court precedent on prosecutorial misconduct is Darden v. Wainwright, 477 U.S. 168

(1986), and under Darden, habeas relief is only appropriate if a prosecutor's improper

closing argument "so infected the trial with unfairness as to make the resulting

conviction a denial of due process." Id. at 181 (quotation omitted). In Darden, the

prosecutor insinuated that if not given the death penalty, the defendant might be

allowed out on work release to kill again, referred to the defendant as an animal who

should be on a leash, and asserted that he wished the defendant's face had been "blown

off." Id. at 180 n.9-12. The Court found that while improper, the comments did not

infect the trial with unfairness sufficient to deny petitioner due process. Id. at 181-83.

The Missouri Supreme Court's conclusion that the prosecutor simply misspoke

in calling Cole a convicted "killer" is a factual finding that we presume to be correct.

28 U.S.C. § 2254(e). Cole cannot rebut this presumption. We agree that because of

the prosecutor's repeated earlier descriptions of Cole as a "convicted felon," the record

supports the conclusion that the use of the word "killer" instead of "felon" in this

instance was inadvertent and not unduly prejudicial. Arguments about Cole sneaking

around and terrorizing were not improper, unless throwing a tire jack through a glass

patio door, conduct admitted by Cole, can somehow not be considered terrorizing.

And while we have previously frowned upon "send a message," see Sublett v.

Dormire, 217 F.3d 598, 601 (8th Cir. 2000), and personalizing arguments, see Kellogg

v. Skon, 176 F.3d 447, 451-52 (8th Cir. 1999), we have also recognized that it will be

exceptionally rare that we grant habeas corpus relief on these bases. Sublett, 217 F.3d

at 601. The "there for a reason" comment was also ill-advised. However, shortly

thereafter, the prosecutor reminded the jury that Cole was entitled to a presumption

of innocence. Furthermore, the prosecutor's comment about Terri being a dying

woman was simply an unfortunate fact, and one which defense counsel acknowledged

in front of the jury before cross-examining her.

Cole argues that the "patriot" statement compares favorably with prosecutorial

argument in Weaver v. Bowersox, 438 F.3d 832, 842 (8th Cir. 2006), wherein we
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affirmed the grant of habeas corpus relief on the basis of improper prosecutorial

closing argument. The Weaver prosecutor used a graphic story from a war movie to

analogize the jurors to soldiers with a duty to kill, and also implored jurors to kill the

defendant as part of the war on drugs. Id. at 836-37. We held that because the

prosecutor used an analogy to soldiers, who "have no choice but to kill" and who

"follow orders when they kill," the prosecutor improperly "eviscerate[d] the concept

of discretion afforded to a jury as required by the Eighth Amendment." Id. at 840.

We found the prosecutor's statements improper because they diminished the jury's

sense of responsibility for imposing the death sentence. Id.

The same cannot be said about the statements made by the prosecutor in this

case. While the prosecutor did call the jurors "patriots," this is not the same as calling

them "soldiers." "Patriot" is a rather generic term defined as "a person who loves,

supports, and defends his or her country and its interests with devotion." Webster's

Unabridged Dictionary 1422 (2d ed. 1997). It does not commonly include a duty to

kill. Nothing in the prosecutor's statements insinuated that the jurors lacked the

discretion to decide whether to impose the death penalty. Analogies to war and to

soldiers are not comparable to the prosecutor's brief reference to the jurors here as

"patriots."

Accordingly, the challenged statements were either not improper, or even if

they were, they were not so inflammatory and prejudicial as to render the trial

fundamentally unfair and constitute a denial of Cole's due process. The evidence at

trial showed, and Cole admits, that he went to Terri's home with a tire iron and broke

a glass patio door to gain entrance to the house. Cole then asked the jury to believe

that Terri delivered the fatal blows to Curtis, her guest, in an effort to keep Curtis

(who was, admittedly, quite large), from hurting Cole. During his testimony, Cole

also insinuated that Curtis administered the knife wounds to Terri. The essence of

Cole's guilt phase trial boiled down to whether jurors believed Terri or Cole. At the

penalty phase, the prosecution presented three aggravating circumstances–that the

murder was committed during the attempted homicide of Terri Cole; that it involved
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depravity of the mind because it was wantonly vile, horrible and inhumane (based

upon the excessive number of knife wounds sustained by Curtis); and that it was

committed during the perpetration of burglary. The jury found the latter two

aggravators beyond a reasonable doubt. When considered in context of the

prosecutor's lengthy closing arguments and the evidence presented at both phases of

trial, there is no reasonable probability that the prosecutor's statements during closing

arguments fatally infected either trial with unfairness or affected the outcome.

Accordingly, the Missouri Supreme Court's denial of this claim was not contrary to,

or an unreasonable application of, Supreme Court precedent.

F. Claim 20: Cumulative Effect of Errors

In Cole's final claim, he alleges that his constitutional rights were violated by

the cumulative effect of the errors asserted in his petition. Our precedent forecloses

this argument, Hall v. Luebbers, 296 F.3d 685, 692-93 (8th Cir. 2002), as Cole

concedes.

III. CONCLUSION

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

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

I concur in the court's opinion, with the following exceptions. With respect to

Part II. D, I concur in the discussion regarding Claim 7 (guilt phase restraints), but

concur only in the result of the resolution of Claim 16 (penalty phase restraints)

because it appears Claim 16, even if meritorious, is foreclosed by Williams v. Norris,

612 F.3d 941 (8th Cir. 2010). See id. at 958 ("Williams cannot claim any relief from

Deck, because Deck post-dated his trial and the principles articulated therein were not

clearly established at that time."). I respectfully dissent from Part II. C because I

believe Cole's trial counsel was constitutionally ineffective in failing to investigate
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and present evidence regarding Cole's exemplary behavior during his pre-trial

detention.

I

Cole alleges his trial counsel should have called two jail employees, William

Bradford and Romel Cochrel, and a nun, Sister Judith Klump, during the penalty

phase of his trial. Bradford was in charge of the inmates housed on Cole's floor and

would have testified Cole was an ideal inmate who followed rules, was mild

mannered, and an excellent worker. Bradford would have informed the jury as to

Cole being one of the select inmates with a prison job, considered a privilege.

Cochrel, a seasoned jailer, was Cole's housing unit officer and would have

testified as to Cole being an exceptional worker with no discipline problems. "[O]ne

out every 30 to 40 inmates would be the Andre Cole type. And what I mean by that,

you would [ask] somethin' of him once and . . . he would follow through and do what

was [asked] of him. He didn't – he didn't allow himself to get caught up in a lot of jail

house games." Post-Conviction Hearing Transcript at 286.

Sister Klump ran the jail religious services. She would have testified Cole was

an excellent student who knew more than most of the inmates, and that she often

asked Cole to start her Scriptures class with a prayer because Cole spoke from the

heart.

The Missouri Supreme Court rejected this claim, noting Cole's "trial counsel

was a seasoned, death-penalty litigation attorney" who had "tried nineteen capital

murder cases" and who testified that "her experience with presenting evidence on a

defendant's good behavior in jail was generally ineffective." Cole v. State, 152

S.W.3d 267, 269-70 (Mo. 2004). The Missouri Supreme Court did not specifically

address whether trial counsel's investigation into Cole's jailhouse behavior was

adequate, but seemed to have implicitly found it to be adequate. See id. at 269
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(finding trial counsel "contacted the corrections officers where [Cole] was being

confined and investigated [Cole's] behavior while in jail"). The Missouri Supreme

Court also stated its belief that the good jailhouse behavior evidence "essentially

overlapped" with other evidence presented of Cole's good behavior and concluded

trial counsel was "not ineffective for failing to put on cumulative evidence,"

characterizing trial counsel's decision as a "reasonable choice[] of trial strategy." Id.

at 270.

The Missouri Supreme Court's resolution of this issue was unreasonable in two

respects. First, the implicit factual determination as to trial counsel conducting an

adequate investigation into Cole's jailhouse behavior was an "an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding." 28 U.S.C. § 2254(d)(2). The post-conviction transcript indicates trial

counsel did not investigate Cole's jailhouse behavior. Second, because trial counsel's

investigation was inadequate, the Missouri Supreme Court's determination that trial

counsel made a reasonable choice of trial strategy is "an unreasonable application of

[] clearly established Federal law, as determined by the Supreme Court of the United

States." 28 U.S.C. § 2254(d)(1). Well-established Supreme Court precedent indicates

there must first be an adequate and thorough investigation before trial counsel's choice

can be considered a reasonable strategy decision.

A. The Failure to Investigate

Trial counsel in a capital case is "obligat[ed] to conduct a thorough

investigation of the defendant's background." Williams v. Taylor, 529 U.S. 362, 396

(2000). A capital defendant's lawyer must make diligent efforts "to discover all

reasonably available mitigating evidence and evidence to rebut any aggravating

evidence that may be introduced by the prosecutor." Wiggins v. Smith, 539 U.S. 510,

524 (2003) (citation omitted). Evidence regarding the exemplary behavior of a capital

defendant during time he spends in pretrial detention awaiting trial is clearly "relevant
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mitigating evidence" which a capital defendant has a "right to place before the

sentencer." Skipper v. South Carolina, 476 U.S. 1, 4 (1986).

The Missouri Supreme Court's implicit decision as to Cole's trial counsel having

adequately investigated his positive jailhouse behavior is unreasonable. I recognize

"[f]indings of fact made by state appellate courts have the same presumptive

correctness as findings of fact made by state trial courts," Weaver v. Bowersox, 241

F.3d 1024, 1031 (8th Cir. 2001), but such presumption is overcome in this case.

The transcript of the post-conviction proceedings establishes that trial counsel

did not investigate Cole's exemplary jailhouse behavior. She never discovered he was

involved in the Scripture class or made any attempt to interview Sister Klump. She

never conversed with Bradford or Cochrel, or even made an attempt to determine who

Cole's housing unit officer was. Instead, her investigation consisted of seeing

correction officers walking around during jailhouse visits with her client. As she

would finish visiting Cole she "would say a few things to people. I can't tell you who

those people were by name." Post-Conviction Transcript at 369. This was the full

extent of the testimony presented at the post-conviction hearing on trial counsel's

purported investigation into Cole's exemplary jailhouse behavior. Saying "things" to

jailhouse staff in passing does not constitute an investigation into Skipper-type

evidence. A trial counsel's casual conversations with jail staff, with nothing more than

an implied suggestion the conversations even related to her client, clearly does satisfy

the stringent investigatory duties required by the Supreme Court in capital cases. The

Missouri Supreme Court's decision to the contrary is unreasonable.

I am not persuaded by the state's reliance on Skillicorn v. Luebbers, 475 F.3d

965 (8th Cir. 2007). Skillicorn rejected a claim that a capital defendant was

prejudiced by his counsel's failure to present Skipper-type evidence of his good

behavior while he was in a drug treatment center and at a county jail awaiting trial,

recognizing Skipper does not necessarily require an attorney to present positive

jailhouse behavior evidence in a capital case. In Skillicorn, however, the defendant's
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attorney actually investigated the defendant's good behavior in jail before deciding the

evidence would not be terribly helpful. 475 F.3d at 975.

As the Supreme Court noted in Strickland, "strategic choices made

after thorough investigation of law and facts relevant to plausible options

are virtually unchallengeable." Strickland [v. Washington], 466 U.S.

[668, 690 (1984)]. On the other hand, strategic choices "resulting from

lack of diligence in preparation and investigation [are] not protected by

the presumption in favor of counsel." Kenley v. Armontrout, 937 F.2d

1298, 1304 (8th Cir.1991); see also Wiggins v. Smith, 539 U.S. 510, 527

(2003) ("Strickland does not establish that a cursory investigation

automatically justifies a tactical decision . . .. Rather, a reviewing court

must consider the reasonableness of the investigation said to support that

strategy." (citing Strickland, 466 U.S. at 691)).

Armstrong v. Kemna, 534 F.3d 857, 864-65 (8th Cir. 2008); see also Sears v. Upton,

130 S.Ct. 3259, 3265 (2010) (reiterating the "plain" point that a failure to present

evidence cannot be justified as a reasonable tactical decision when "counsel did not

fulfill their obligation to conduct a thorough investigation of the defendant's

background." (quoting Williams v. Taylor, 529 U.S. at 396)). The Missouri Supreme

Court therefore unreasonably concluded trial counsel made a reasonable choice of trial

strategy to forego presenting jailhouse evidence, where there is no evidence Cole's

trial counsel actually conducted an investigation, let alone an adequate investigation,

into his positive jailhouse behavior.

B. Prejudice From the Failure to Present the Evidence

In Skipper, the Supreme Court reversed a South Carolina court's decision to

exclude testimony from two jailers and a regular jail visitor regarding the behavior of

a capital defendant during the seven-and-a-half months he spent in pretrial detention

awaiting his trial. Significantly, the Supreme Court specifically distinguished the

testimony of the two jailers and jailhouse visitor from testimony by Skipper himself

and a family member regarding his general good character and adjustment to prison
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life. South Carolina argued the evidence from the jailers was "merely cumulative" of

the evidence offered by the defendant himself and his former wife, and its exclusion

was therefore harmless. 476 U.S. at 8. The Supreme Court rejected that claim,

stating:

The evidence petitioner was allowed to present on the issue of his

conduct in jail [i.e., from himself and a family member] was the sort of

evidence that a jury naturally would tend to discount as self-serving.

The testimony of more disinterested witnesses – and, in particular, of

jailers who would have had no particular reason to be favorably

predisposed toward one of their charges – would quite naturally be given

much greater weight by the jury.

Id.

The Supreme Court also addressed whether the failure to present such evidence

could result in prejudice, stating:

Nor can we confidently conclude that credible evidence that petitioner

was a good prisoner would have had no effect upon the jury's

deliberations. The prosecutor himself, in closing argument, made much

of the dangers petitioner would pose if sentenced to prison, and went so

far as to assert that petitioner could be expected to rape other inmates.

Under these circumstances, it appears reasonably likely that the

exclusion of evidence bearing upon petitioner's behavior in jail (and

hence, upon his likely future behavior in prison) may have affected the

jury's decision to impose the death sentence.

Id.

Similar arguments were made by the prosecutor in this case. The prosecutor

argued Cole had escalated his level of violence from one encounter with his ex-wife

to the next, and thus implied the death penalty was the next step needed to stop the

escalation:
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When you think about the culmination of things that were done to be fair

to him, for this system to be fair to him – he's given probation, no more

guns, for this one. How does he respond? Ex parte order violation:

Unscrewing the lights to terrorize, to sneak; just like he did in this case.

That explosion through the window to terrorize.

No contact. How does he respond to that in 1995? Along with the guns

we know what he did. He went back into [] that house.

So, the Court escalates things a little. No contact provisions aren't

working. He keeps goin' back. No weapons provisions aren't workin'.

So he gets work release.

Do you know why he gets work release? So he can pay his child

support. And he still is – you know, in this case he still didn't do that.

And then, he gets the jail time. That's the deterrent. Now he's got jail

time. Now he'll abide by the rules.

Well guess what? He didn't.

Trial Transcript at 1635-36.

This argument clearly suggests that a progressively punitive response is

necessary to control Cole's behavior, from probation, to a no-contact order, to work

release, to jail time. The next step implied – the death penalty. In light of this

argument, the failure to present evidence of Cole's exemplary behavior in jail may

have affected the jury's decision to impose the death penalty.

In Williams v. Taylor, the Supreme Court emphasized not only the important

role evidence of good jailhouse behavior plays in a capital case, but also trial counsel's

duty to conduct a thorough investigation regarding all reasonably available mitigating

evidence. The Supreme Court granted habeas relief to a capital defendant based on

his trial counsel's failure to thoroughly investigate and present mitigating evidence,

including evidence of his jailhouse behavior while awaiting trial. The Supreme Court
-25-

noted that trial counsel failed to investigate Williams's prison records, which showed

he broke up a drug distribution ring in the facility, and that prison officials described

him as being among the "least likely to act in a violent, dangerous or provocative

way." 529 U.S. at 396.

Similar to Cole, Williams took part in a prison ministry program. Id. He also

earned a carpentry degree. Id. The Supreme Court held Williams was prejudiced by

his trial counsel's failure to discover and present his correctional history to the jury,

id. at 398, despite the fact there were some negative aspects to his correctional history,

i.e., he "set fire to his cell while awaiting trial for the murder at hand and has repeated

visions of harming other inmates." Id. at 419 (Rehnquist, C.J., dissenting).

Here, the state argues the positive information about Cole's prison behavior

would not have made a difference because it was negated by the unfavorable evidence,

that is, Cole failing to report to jail after a work release shift. The problem with the

state's argument is two-fold. First and foremost, the jury was already aware of the

negative information. Cole's trial counsel failed to counter the negative information

already known to the jury with positive information from William Bradford, Romel

Cochrel, and Sister Judith Klump. Second, the negative information involved in

Williams (setting a jail cell on fire) was much more serious than Cole's negative

behavior (failure to report), and yet did not prevent the Supreme Court from finding

Williams suffered prejudice from his counsel's failure to investigate and present

positive jailhouse behavior.

Given Skipper's distinction between jailhouse behavior testimony directly from

jailers, as opposed to similar character evidence from a capital defendant or his family

members, the Missouri Supreme Court's decision that Cole's good jailhouse behavior

would have merely been cumulative of other evidence of Cole's good behavior is an

unreasonable application of Supreme Court precedent. In addition, the emphasis the

Supreme Court placed on presenting positive jailhouse behavior in Williams, despite

the existence of some negative information, belies Missouri's claim that Cole did not
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suffer prejudice from his trial counsel's failure to discover and present evidence of his

positive jailhouse behavior.

II

For the reasons stated, I respectfully dissent from the court's decision to affirm

the district court's denial of relief on the claim that Cole's trial counsel failed to

investigate and present evidence regarding Cole's exemplary prison conduct. I would

grant habeas relief on that claim and require Missouri to give Cole a new penalty

phase trial.

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