1

The Honorable Norman H. Stahl, United States Circuit Judge for the First

Circuit, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-3465

___________

Steven Davidson, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Michael Bowersox, *

*

Appellee. *

___________

Submitted: November 14, 2001

Filed: April 18, 2002 

___________

Before BOWMAN, JOHN R. GIBSON, and STAHL,1

 Circuit Judges.

___________

BOWMAN, Circuit Judge.

A Missouri state court jury convicted Steven Davidson of two counts of firstdegree murder, one count of second-degree murder, and three counts of armed

criminal action. Although he was eligible to receive the death penalty, he was

sentenced to life imprisonment without the possibility of parole on two counts and

life imprisonment on the other four counts. Davidson filed a state motion for postconviction relief, which was denied. His conviction, sentence, and the denial of his

motion for post-conviction relief were affirmed by the Missouri Court of Appeals.
2

The Honorable Jean C. Hamilton, Chief Judge, United States District Court

for the Eastern District of Missouri.

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State v. Davidson, 941 S.W.2d 732 (Mo. Ct. App. 1997). Davidson then filed a 28

U.S.C. § 2254 petition for a writ of habeas corpus in the District Court.2

 That court

denied Davidson's petition. He appeals and we affirm.

Davidson shot and killed three people on the street in front of his home. At

trial, he claimed the shootings were committed in self-defense. During the guilt phase

of Davidson's trial, the state's evidence against him included videotaped statements

he made to the police on the day of the shootings in which he said that none of the

victims had a weapon and that he was not afraid for his safety at the time of the

shootings. To rebut the videotaped statements, Davidson's counsel attempted to

present the testimony of Dr. Cuneo, a psychologist. The doctor would have testified

that Davidson suffered from post-traumatic stress disorder and other personality

disorders that prevented him from admitting to the police that he feared for his safety

at the time of the shootings. Davidson's counsel argued that the evidence went to the

question of Davidson's mental state at the time he committed the shootings. The State

objected to the admission of this evidence, and the trial court sustained the objection,

citing the provisions of Missouri Revised Statute § 552.015.2(8). Under Missouri

law, "[e]vidence that the defendant did or did not suffer from a mental disease or

defect" is admissible only in the instances enumerated in the statute. Mo. Rev. Stat.

§ 552.015.2 (1986). In Davidson's case, the only relevant portion of the statute

provided that such testimony would be admissible "[t]o prove that the defendant did

or did not have a state of mind which is an element of the offense." Id.

§ 552.015.2(8).

The Missouri Court of Appeals rejected Davidson's challenge to the trial court's

ruling. The court held that Davidson intended to introduce Dr. Cuneo's testimony to
3

After the state objected to Dr. Cuneo's testimony, Davidson's attorney made

a proffer to the court during which counsel asked Dr. Cuneo whether he would be

able to testify, to a reasonable degree of psychological certainty, as to Davidson's

state of mind at the time of the murders. Dr. Cuneo answered unequivocally that he

would not be able to so testify. Trial Tr. at 1418-19. Dr. Cuneo further agreed that

he would be able to testify to Davidson's "patterns of perception," to his "perception

of adequate provocation," to "his ability to recount events shortly after the incident"

and up to the time of trial, and that Davidson's personality disorders "affect his ability

to recount events." Id. at 1419. The trial court, after hearing this proffer, excluded

Dr. Cuneo's testimony and dismissed him as a witness.

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"rebut or 'soften' the effect of his statement" to the police. Davidson, 941 S.W.2d at

734. The court further held that this purpose did not fall within the sweep of

subsection 8 of section 552.015.2 because that subsection makes an exception only

in regard to "expert testimony diagnosing defendant to have a mental disease or

defect excluding responsibility for committing one or more elements of the crime,

including absence of the appropriate mental state." Id. at 735. Referring to the

record, the court noted that Dr. Cuneo specifically stated that he could not offer

testimony as to Davidson's state of mind at the time of the shootings.3

Davidson bases his habeas claim on the theory that the trial court's refusal to

admit Dr. Cuneo's testimony during the guilt phase of the trial violated Davidson's

federal constitutional due process and equal protection rights. He argues that the state

court's decision was "based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding," and he therefore should be

granted habeas relief under the provisions of 28 U.S.C. § 2254(d). Appellant's Br. at

23. Davidson maintains that "[t]he Missouri courts and the district court erred in

failing to realize that Dr. Cuneo's testimony was admissible under the state statute as

proof of [his] state of mind at the time of the shootings." Id. at 24.

We may review a state court's factual findings only to discern whether the state

court's decision is "based on an unreasonable determination of the facts in light of the
4

In support of his argument, Davidson highlights Dr. Cuneo's testimony during

the penalty phase of Davidson's trial, in which the doctor stated that if Davidson's

statements to him were true then Davidson "would have thought at that time [of the

shootings] that someone was going to hurt him." Trial Tr. at 1548. Again, because

Dr. Cuneo stated during the guilt phase that he could not testify about Davidson's

mental state at the time of the shootings, the trial court and the appellate court did not

unreasonably conclude that the doctor's testimony was not admissible under section

552.015.2(8).

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evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2) (Supp. IV

1998). Given Dr. Cuneo's testimony during the guilt-phase proffer of evidence, in

which he clearly stated that he could not give an opinion regarding Davidson's mental

state at the time he committed the shootings, see supra note 3, we cannot say that the

Missouri appellate court erroneously determined that Dr. Cuneo would not have

testified about Davidson's state of mind regarding an element of the offense.

Although Davidson's attorney argued at trial, and continues to argue on appeal, that

Dr. Cuneo could so testify, the plain statement of Dr. Cuneo rebuts counsel's

arguments.4

Davidson also argues that the state appellate court misinterpreted Missouri law

when it excluded Dr. Cuneo's proffered testimony. It is not within the prerogative of

a federal habeas court to question a state court's interpretation of its state's law,

Estelle v. McGuire, 502 U.S. 62, 67 (1991), yet Davidson's argument asks this Court

to engage in exactly such an inquiry. Absent a showing that the state court's decision

suffers from some federal constitutional defect, the Missouri Court of Appeals's

conclusion as a matter of state law that Davidson's proposed use of Dr. Cuneo's

testimony fell outside the ambit of section 552.015.2(8) is not reviewable by this

Court. See, e.g., Morgan v. Krenke, 232 F.3d 562, 567 (7th Cir. 2000) ("[E]ven if

there had been an error of [state] law regarding the admission of evidence, it is not

our role to correct it. It has never been our job unless the error rises to the level of a

constitutional violation."), cert. denied, 532 U.S. 951 (2001).
5

Even the cases cited by Davidson for the standard of review are not applicable

to our inquiry, as both are cases arising before Congress significantly narrowed the

scope of federal habeas review. See Whitmore v. Kemna, 213 F.3d 431, 433 (8th Cir.

2000) ("It seems to us that § 2254(d) as amended by the AEDPA is unambiguous as

to the scope of federal court review, limiting such review (at least as compared with

past practice) in order to effect the intent of Congress to expedite habeas proceedings

with appropriate deference to state court determinations.").

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As is too often the case in habeas pleadings, Davidson does not cite a single

federal case (beyond noting our standard of review)5

 for the proposition that the

exclusion of testimony such as that proffered by Dr. Cuneo amounts to a violation of

the United States Constitution. Moreover, Davidson does not argue in this appeal

that the state appellate court's decision was contrary to or involved an unreasonable

application of federal law clearly established in Supreme Court precedent. See 28

U.S.C. § 2254(d)(1). Because Davidson does not raise an issue of federal

constitutional law, but only challenges the Missouri Court of Appeals's factual

determinations and interpretation of state law, we do not decide any questions of

federal constitutional law that could have been raised under § 2254(d)(1).

In summary, we hold that the Missouri Court of Appeals did not unreasonably

determine the facts in light of the state court record when the court rejected

Davidson's challenge to his conviction on the basis of Dr. Cuneo's excluded

testimony. We therefore affirm the District Court's denial of Davidson's habeas

petition.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.