The Hon orable Donald J. Stohr, United States District Judge for the Easter n 1 District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1983

___________
Steven Wesley Parkus, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Michael Bowersox, * * Appellee. *

___________ Submitted: April 17, 1998 Filed: October 5, 1998

___________ Before FAGG, WOLLMAN, and HANSEN, Circuit Judges.

___________ WOLLMAN, Circuit Judge.
Steven W. Parkus, a Missouri inmate sentenced to death, appeals from th e district court’s denial of his petition for a writ of habeas corpus filed pursuant to 2 8

1 U.S.C. § 2254. We affirm.-2- I.

Parkus was found guilty of first degree murder for the strangulation death o f Mark Ste ffenhagen. The details of the crime were set forth by the Missouri Supreme Court in its opin ion affirming the conviction and sentence on direct appeal. See State v. Parkus , 753 S.W.2d 881 (Mo.) (en banc), cert. denied , 488 U.S. 900 (1988), and we summarize them here.
On November 24, 1985, Parkus and Steffenhagen were inmates in the Missouri State Penitentiary, where the y were confined in Housing Unit 2-B, a unit for prisoners wh o were considered in need of protective custody. Parkus was housed in the uni t because his small physical stature made him a target f or sexual abuse by other inmates. Steffenhagen, who was also slight of stature, was likewise housed in the unit fo r protection from abuse. That evening, Parkus e ntered Steffenhagen’s cell. Using strips of bedding, Parkus restrained Steffenhagen and then, possibly while engaging in anal intercourse, stran gled him. Steffenhagen’s autopsy revealed facial cuts and abrasions suggesting that he had been hit with a blunt object such as a fist. Additionally, bruising on his extremities indicated that he had st ruggled against his restraint, while bruises on his neck and internal damage to his lar ynx revealed that strangulation was the cause of his death.
Parkus was represented at trial by Donald Catlett. Although ha ving never before represe nted a defendant in a capital case, Catlett was an experienced public defender who had represented several defendants with mental problems. Shortly after he was appoint ed, Catlett determined that Parkus’s mental capacity would be a key to hi s defense in light of the fact that Parkus had spent most of his life in Missouri penal and
men tal institutions. Catlett then started to investigate Parkus’s long psychologica l history by attempting to track down records from numerous facilities within severa l Missouri state agencies and private entities. Th e typical response he received was that the records had either been destroyed or were not kept.“A pers on commits the crime of murder in the first degree if he knowingl y 2 causes the death of another person after deliberation upon the matter.” Mo. Rev. Stat. § 565.020.1. Under Missouri law, a mental disease or defect provides a complete defense if, 3 as a result, “[the defendant] did not know or appreciate the nature, quality, o r wron gfulness of his conduct or was incapable of conforming his conduct to th e requirements of law.” Mo. Rev. Stat. § 552 .030(1). Because both experts in Parkus’s trial concluded that he was not mentally incapacitated under section 552.030(1), hi s -3- Catlett also sought menta

l health records from Malcolm Bliss Hospital and was told that that facility had no records of Parkus’s ever having been a patient there. The record is unclear whether Catlett was aware that Parkus had spent a considerabl e period of his yo uth in mental treatment at St. Louis State Hospital, a different facility. Catl ett’s testimony suggests, however, that he contacted Malcolm Bliss under th e mistaken assumption that St. Louis State Hospital and Malcolm Bliss were the sam e facility.

At trial, mu ch of Parkus’s defense centered on the theory that he lacked th e ability to deliberate upon the crime, an essential mental element required for firs t degree murder under Missouri law. Althoug h he did not himself testify, Parkus called 2

as a witness his brother Chester, also a state prisoner, who testified that Parkus ha d been physically and sexually abused by their parents a nd by an uncle. He also testified that Parkus was the frequent victim of sexual abuse during his incarceration.
Two psychiatr

ists testified regarding Parkus’s mental condition. Dr. Mahindra Jayaratna, the state’s expert, testified that Parkus did not have a mental disease o r de fect and that he was able to conform his behavior to the requirements of law , including the ability to deliberate. Dr. A.E. Daniel, who was called by Par kus, although agreeing with Jayaratna

that Parkus suffered from no mental disease or defect, opined that Parkus suffered from a diminished mental capacity that prevented him fro m deliberating upon the murder. 3counsel’s strategy at trial was to prove the partial defense that his mental capacity was

diminished to the extent that he was unable to deliberate upon the murder. -4- The jury rejected Parkus’s diminished mental capacity defense and convicte d him of first degree murder. During the penalty phase of trial, Parkus presente d additional testimony regarding his mental capacity, including that of two inmates, who related that Parkus had been sexually abused in prison and that he had become more violent as he tried to survive. Dr. Daniel reiterated his prior testimony and furthe r testified that Parkus had a low IQ and was borde rline mentally retarded. Dr. Jayaratna
re iterated his conclusion that Parkus had the ability to deliberate before the killing

. After finding that Parkus’s prior convictions for assault and rape, his incarceration at the time of the murder, and the victim’s i nmate status were aggravating circumstances, the jury sentenced him to death.

As indicated

earlier, the Missouri Supreme Court affirmed Parkus’s conviction
on di rect appeal. It later affirmed the denial of Parkus’s petition for post-convictio n relief under Mo. S. Ct. R. 29.15. See Parkus v. State , 781 S.W.2d 545 (Mo. 1989) (en banc), cert. denied , 495 U.S. 940 (1990). Parkus then simultaneously filed for both federal habe as relief under 28 U.S.C. § 2254 and state habeas relief under Mo. S. Ct. R. 91. The Missouri Supreme Court, in a summary order, denied Parkus’s petition for state habeas relief. The district court, after denying Parkus an evidentiary hearing on his federal habeas petition, denied the petition, fi nding that Parkus’s claims were either procedurally barred or without merit. Contending, inter alia , that he was entitled to an evidenti ary hearing, Parkus appealed the district court’s decision to this court. W e reversed and remanded the cause for an evidentiary hearing and a ruling on Parkus’s inef fective assistance of counsel and prosecutorial misconduct claims. See Parkus v. Delo , 33 F.3d 933, 942 (8th Cir. 1994).

On remand, the district court held an evidentiary hearing and again denied the petition. Parkus sought to appeal. Pursuant to 28 U.S.C. § 2 253(c)(3), we granted himParku s also sought a certificate of appealability with respect to his claim o f 4 prosecut orial misconduct. We denied his subsequent petition for rehearing an d ap plication for a certificate of probable cause on the issue. Nevertheless, Parkus has included arguments in his brief concerning our jurisdictio n to consider his prosecutorial misconduct

claims as well as a substantive argument on the issue. We address these arguments in Part III of this opinion. -5- a certificate of appealability on the issue of whether his trial counsel had rendere d ineffective assistance by failing to obtain his medical records from St. Louis Stat e Hospital. 4

II.

Parkus contends he was denied effective assistance of counsel during both the guilt and penalty phases of his trial. This claim, which pr esents mixed questions of law and fact, is reviewed de novo. See Reese v. Delo , 94 F .3d 1177, 1181 (8th Cir. 1996), cert. denied , 117 S.Ct. 2421 (1997). The district court’s factual findings, however, are reviewed for clear error. See Laws v. Armontrout , 863 F.2d 1377, 1381 (8th Cir

. 1988) (en banc).

The governing standard for Parkus’s ineffective assistance of counsel claim i s clearly established:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counse l was n ot functioning as the “counsel” guaranteed the defendant by th e Sixth Am endment. Second, the defendant must show that the deficien t performance prejudiced the defense. This requires showing th at counsel’s errors were s o serious as to deprive the defendant of a fair trial, a tria l whose result is reliable.
Strickland v. Washington , 466 U.S. 668, 687 (1984); Six v. Delo , 94 F.3d 469, 47 3 (8th Cir. 1996), cert. d enied , Six v. Bowersox , 117 S. Ct. 2418 (1997); Sidebottom v.-6-

Delo , 46 F.3d 744, 752 (8th Cir. 1995). To prevail, Parkus must satisfy both prongs of the Strickland

test. See 466 U.S . at 687. We need not address both components of the Stricklandinquiry if the defendant makes an insufficient showing on one. See id. at 697.

Our consideration of Parkus’s claim of ineffective assistance of counse l is guided by the principle that “[j]udicial scrutiny of counsel’s performance must be highl y deferential.” Strickland , 466 U.S. at 689. This deferential standard of review arises from the presumption that an attorney’s performance is reasonable:

A fair assessment of attorney performance requires that every effort b e made to eliminate the distorting effects of hindsight, to reconstruct th e cir cumstances of counsel’s challenged conduct, and to evaluate th e conduct from counsel’s perspective at the time. Because of th e difficu lties inherent in making the evaluation, a court must indulge a strong pres umption that counsel’s conduct falls within the wide range of reasonable profe ssional assistance; that is, the defendant must overcome the p resumption that, under the circumstances, the challenged actio n “might be considered sound trial strategy.”

Id. (quoting Michel v. Louisiana , 350 U.S. 91, 101 (1955 )); see Fretwell v. Norris , 133 F.3d 621, 624 (8th Cir. 1998).

Parkus asserts that it was unreasonable for Catlett to seek his treatment records at Malcolm Bliss Hospital and thereafter fail to further investigate whether St. Loui s State Hospital was a different facility. In support of this contention, he contends that both D r. Jayaratna and Dr. Daniels, each having now had the opportunity to revie w Parkus’s treatment records from St. Louis State Hospital, have changed their opinions regard ing Parkus’s mental state at the time of the murder. Parkus maintains that th e gravity of the e

rror resulting from his counsel’s alleged lack of diligence is irrefutable evidence of an inadequate investigation.-7-

Thi s argument is inconsistent with Strickland . “[A] court deciding an actua l ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct
on the facts of the particular case, viewed as of the time of counsel’s conduct. ” St rickland , 466 U.S. at 690. Accordingly, our assessment of Catlett’s performanc e must be unde rtaken in such a way as to “reconstruct the circumstances of [his ] challengedconduct, and to evaluate the conduct from [his] perspective at the time.” Id. at 689; see also Fretwell , 133 F.3d at 624 (quoting Strickland , 466 U.S. at 689) ; Six , 94 F.3d at 474; O’Neal v. Delo , 44 F.3d 655, 660 (8th Cir. 1995).

Wh en considered in this context, Catlett’s failure to obtain the St. Louis Stat e Ho spital records cannot be said to have fallen below the Stricklandstandard o f reasonableness. This is not a case in which counsel perf ormed little or no investigation of mitigating circumstances. See Fretwell , 133 F.3d at 627 (c iting Pickens v. Lockhart , 714 F.2d 1455, 1467 (8th Cir. 1983)); Wilkins v. Iowa , 957 F.2d 537, 541 (8th Cir

. 1992) (citing Thomas v. Lockhart , 738 F.2d 304 (8th Cir. 1984) (d eficient investigation where counsel did nothing beyond reading police file)); Kenley v. Armontrout , 93 7 F.2d 1298, 1304 (8th Cir. 1991) (citing Chambers v. Armontrout , 907 F.2d 825, 828 (8 th Cir. 1990) (en banc); Thomas , 738 F.2d at 308; and Pickens , 714 F.2d at 1467). With the help of his staf

f, Catlett conducted a thorough search for records of Parkus’s mental health history. He contacted numerous state agencies, as well as the individual institution s at which he believed Parkus had been placed during the course of his life.

Parkus’s citation to Hill v. Lockhart , 28 F.3d 832 (8th Cir. 1994), i s unpersuasi ve. In Hill , we held that a defendant had received ineffective assistance of counsel by reason of his attorney’s failure to present evidence of the defendant’ s psychiatric history, including the schizophrenic tendenci es that resulted from his failure to take his anti-psychotic d rugs. See id. at 845. In that case, unlike here, counsel had mad e no attempt to obtain crucial treatment records that documented the defendant’s history of hallucinations and his positive response to anti-psychotic drugs. See id.-8-

Likewise, we do not agree that Baxter v. Thomas , 45 F.3d 1501 (11th Cir

. 199 5), presents a situation comparable to Parkus’s. In Baxter , counsel, who wer e under the impression that the defendant had spent much of his youth in juvenil e institutions, failed to obtain records from a mental hospital where the defendant ha d spent three years of his teenage life. Indeed, counsel, who were aware that a mental hospital was locate d in the same city as the juvenile institution and who had observed strong ind ications that Baxter had psychiatric problems, “failed to take any steps t o uncover mental health mitigating evidence that was readily available.” Id. at 1514; see also Bloom v. Cald eron , 132 F.3d 1267, 1271 (9th Cir. 1997), cert. denied , 118 S.Ct. 1856 (1998) (ineffective assistance when tri al counsel did “virtually nothing” to obtain psych iatrist witness until a few days before trial and then did “practically nothing” to prepare the witness).

Our concl usion that Parkus has failed to demonstrate a deficiency in hi s counsel’s performance makes it unnecessary to inquire i nto his claim of prejudice. See Walls v. Bowersox , 151 F.3d 827, 835 (8th Cir. 1998). Accordingly, we affirm th e district court’s denial of relief on Parkus’s ineffectiveness of counsel claim.

III.
As noted above, we limited our certificate of appealability to Parkus’s ineffective assistance of counsel claim. Parkus contends that his appeal is not limited by th e certificate of appealability because the district court granted him an un limited certificate of probable cause on December 29, 1992, well before the April 24, 1996 , effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

Pre-AEDP A, section 2253 required a state prisoner to obtain a certificate o f probable cause before appealing from the denial of a federal habeas petition. Se e Ram sey v. Bowersox , 149 F.3d 749, 759 (8th Cir. 1998). The AEDPA amende d section 2253 by replacing the certificate of probable cause with a certificate of-9-

appealability. See id. Althoug h the ground for issuing a certificate of appealability is the same as that w hich justified issuing a certificate of probable cause, a certificate of appealability is more limited in scope than was the latter. See Roberts v. Bowersox , 137 F.3d 1 062, 1068 (8th Cir. 1998). “‘[A] certificate of probable cause places th e
case b efore the court of appeals, but a certificate of appealability must identify eac h issue m eeting the ‘substantial showing’ standard.’” Id. (quoting Herrera v. Unite d States , 96 F.3d 1010, 1012 (7th Cir. 1996)).

Th e AEDPA’s provisions regarding certificates of appealability apply to those habeas cases which were filed prior to the effective date of the Act. See Tiedeman v. Benson , 122 F.3d 518, 520-21 (8th Cir. 1997). As we did in Ro berts , however, we will give P arkus the benefit of the doubt and consider the merits of his claim that th e pros ecution improperly withheld exculpatory information in his prison file from hi s attorney in violation of Brady v. Maryland , 373 U.S. 83 (1963).

In Brad y , the Supreme Court held that “the suppression by the prosecution o f evidence favorable to an accused upon request violates due proces s where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of t he prosecution.” 373 U.S. at 87. To establish a Brady violation, Parkus mus t de monstrate that the government suppressed evidence, that the evidence wa s exculpator y, and that the evidence was material either to guilt or punishment. Se e United States v. Duke , 50 F.3d 571, 577 (8th Cir. 1995). The district court concluded that Parkus failed to meet the suppression requirement of Brady

. Specifically, the court found that the pros ecutor gave Catlett full pretrial access to the state’s files, including Parkus’s prison files, a finding that is corroborated by the prosecution’s pretrial written response to Parkus’s request for disclosure. We review this factual finding for clear
error. See Wilkins v. Bowersox , 145 F.3d 1006, 1011 (8th Cir. 1998); United States
v. Harvey , 900 F.2d 1253, 1259 (8th Cir. 1990); Laws , 863 F.2d at 1381. W e conclude that the district court’s finding is supported by the record. Having failed to establish that the prosecution suppres sed the prison records, the allegation that formed-10-

the basis of our finding of cause to excuse his procedural default, see Parkus v. Delo , 33 F.3d a t 940, Parkus is now barred from arguing that he was prejudiced by hi s counsel’s failure to utilize the information that was available t o him, a claim that should have been raised in the state courts.
The judgment is affirmed.
A true copy.

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